Sec. 738. New Worker Program and Conditional Nonimmigrant Fee
Account.

2.

Reference to the
Immigration and Nationality
Act

Except as
otherwise expressly provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a section or other
provision, the reference shall be considered to be made to a section or other
provision of the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.).

3.

Definitions

In this Act:

(1)

Department

Except
as otherwise provided, the term Department means the Department of
Homeland Security.

(2)

Secretary

Except
as otherwise provided, the term Secretary means the Secretary of
Homeland Security.

4.

Severability

If any provision of this Act, any amendment
made by this Act, or the application of such provision or amendment to any
person or circumstance is held to be invalid for any reason, the remainder of
this Act, the amendments made by this Act, and the application of the
provisions of such to any other person or circumstance shall not be affected by
such holding.

5.

Certification
requirements prior to implementation of the New Worker Program and the
conditional nonimmigrant classification

Notwithstanding any other provision of this
Act, the Secretary may not implement the New Worker Program established in the
amendments made by title IV or grant conditional nonimmigrant classification
under the amendments made by title VI prior to the date that the Secretary
submits to the President and Congress a certification that the following
conditions have been met:

(1)

Secure
border

The Secretary has submitted to Congress a report on the
status of the implementation of the border surveillance technology improvements
described in the Secure Border Initiative, including target dates for the
completion of such improvements.

(2)

Secure
documents

That the systems and infrastructure necessary to carry
out the improvements to immigration document security required by this Act and
the amendments made by this Act, including documents that will be issued under
the New Worker Program and to aliens granted conditional nonimmigrant
classification, have been developed, tested for reliability and accuracy, and
are ready for use, including systems and infrastructure necessary to permit the
Director of the Federal Bureau of Investigation to conduct required background
checks.

(3)

First phase
implementation of the electronic employment eligibility verification
system

The first phase of the Electronic Employment Verification
System described in section 274A of the Immigration and Nationality Act, as
amended by section 301 of this Act, for critical infrastructure employers
described in subsection (c)(10)(i) of such section 274A has been
implemented.

I

BORDER
ENFORCEMENT

A

Assets for
Controlling United States Borders

101.

Enforcement
personnel

(a)

Port of entry
inspectors

(1)

Additional
inspectors

In each of the fiscal years 2008 through 2012, the
Secretary shall, subject to the availability of appropriations, increase by not
less than 500 the number of positions for full-time active duty port of entry
inspectors and provide appropriate training, equipment, and support to such
additional inspectors.

(2)

Authorization of
appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of the fiscal years 2008
through 2012 to carry out paragraph (1).

(b)

Border Patrol
agents

Section 5202 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734) is amended to read
as follows:

5202.

Increase in
Full-Time Border Patrol agents

(a)

Annual
Increases

The Secretary of Homeland Security shall, subject to
the availability of appropriations for such purpose, increase the number of
positions for full-time active-duty Border Patrol agents within the Department
of Homeland Security (above the number of such positions for which funds were
appropriated for the preceding fiscal year), by—

(1)

2,000 in fiscal
year 2008;

(2)

2,400 in fiscal
year 2009;

(3)

2,400 in fiscal
year 2010;

(4)

2,400 in fiscal
year 2011; and

(5)

2,400 in fiscal year
2012.

(b)

Northern
Border

In each of the fiscal years 2008 through 2012, in addition
to the Border Patrol agents assigned along the northern border of the United
States during the previous fiscal year, the Secretary shall assign a number of
Border Patrol agents equal to not less than 20 percent of the net increase in
Border Patrol agents during each such fiscal year.

(c)

Authorization of
Appropriations

There are authorized to be appropriated such sums
as may be necessary for each of fiscal years 2008 through 2012 to carry out
this
section.

.

(c)

Investigative
personnel

(1)

Immigration and
customs enforcement investigators

Section 5203 of the
Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458;
118 Stat. 3734) is amended by striking 800 and inserting
1000.

(2)

Additional
personnel

In addition to the positions authorized under section
5203 of the Intelligence Reform and Terrorism Prevention Act of 2004, as
amended by paragraph (1), during each of the fiscal years 2008 through 2012,
the Secretary shall, subject to the availability of appropriations, increase by
not less than 200 the number of positions for personnel within the Department
assigned to investigate alien smuggling.

(3)

Authorization of
appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of the fiscal years 2008
through 2012 to carry out this section.

(d)

Deputy United
States Marshals

(1)

Additional
United States Marshals

In each of the fiscal years 2008 through
2012, the Attorney General shall, subject to the availability of
appropriations, increase by not less than 50 the number of positions for
full-time active duty Deputy United States Marshals that investigate criminal
matters related to immigration.

(2)

Authorization of
appropriations

There are authorized to be appropriated to the
Attorney General such sums as may be necessary for each of the fiscal years
2008 through 2012 to carry out paragraph (1).

(e)

Recruitment of
former members of the Armed Forces and members of reserve components of the
Armed Forces

(1)

Requirement for
program

The Secretary, in conjunction with the Secretary of
Defense, shall establish a program to actively recruit covered members or
former members of the Armed Forces to serve in United States Customs and Border
Protection.

(2)

Report on
recruitment incentives

(A)

Requirement

Not
later than 60 days after the date of enactment of this Act, the Secretary and
the Secretary of Defense shall jointly submit to the appropriate committees of
Congress a report assessing the desirability and feasibility of offering an
incentive to a covered member or former member of the Armed Forces for the
purpose of encouraging such member to serve in United States Customs and Border
Protection. The Secretary and the Secretary of Defense shall assume that the
cost of any such incentive shall be borne by the Secretary.

(B)

Content

The
report required by subparagraph (A) shall include—

(i)

an
assessment of the desirability and feasibility of offering any incentive,
including a monetary incentive, that the Secretary and the Secretary of Defense
jointly consider appropriate, regardless of whether such incentive is
authorized by law or regulations on the date of enactment of this Act;

(ii)

a
detailed assessment of the desirability and feasibility of such an incentive
that would—

(I)

encourage service
in United States Customs and Border Protection by a covered member or a former
member of the Armed Forces who provided border patrol or border security
assistance to United States Customs and Border Protection as part of the
member's duties as a member of the Armed Forces; and

(II)

leverage military
training and experience by accelerating training, or allowing credit to be
applied to related areas of training, required for service with United States
Customs and Border Protection;

(iii)

a
description of various monetary and non-monetary incentives considered for
purposes of the report;

(iv)

an assessment of
the desirability and feasibility of utilizing any such incentive for the
purpose described in subparagraph (A); and

(v)

any
other matter that the Secretary and the Secretary of Defense jointly consider
appropriate.

(3)

Definitions

In
this subsection:

(A)

Appropriate
Committees of Congress

The term appropriate committees of
Congress means—

(i)

the
Committee on Appropriations, the Committee on Armed Services, and the Committee
on Homeland Security and Governmental Affairs of the Senate; and

(ii)

the
Committee on Appropriations, the Committee on Armed Services, and the Committee
on Homeland Security of the House of Representatives.

(B)

Covered member
or former member of the Armed Forces

The term covered
member or former member of the Armed Forces means an individual—

(i)

who
is a member of a reserve component of the Armed Forces; or

(ii)

who is a former
member of the Armed Forces within 2 years of separation from service in the
Armed Forces.

102.

Technological
assets

(a)

Increased
Availability of Equipment

The Secretary and the Secretary of
Defense shall develop and implement a plan to use authorities provided to the
Secretary of Defense under chapter 18 of title 10, United States Code, to
increase the availability and use of Department of Defense equipment, including
unmanned aerial vehicles, tethered aerostat radars, and other surveillance
equipment, to assist the Secretary in carrying out surveillance activities
conducted at or near the international land borders of the United States to
prevent illegal immigration.

(b)

Report

Not
later than 6 months after the date of enactment of this Act, the Secretary and
the Secretary of Defense shall submit to Congress a report that
contains—

(1)

a
description of the current use of Department of Defense equipment to assist the
Secretary in carrying out surveillance of the international land borders of the
United States and assessment of the risks to citizens of the United States and
foreign policy interests associated with the use of such equipment;

(2)

the plan developed
under subsection (b) to increase the use of Department of Defense equipment to
assist such surveillance activities; and

(3)

a
description of the types of equipment and other support to be provided by the
Secretary of Defense under such plan during the 1-year period beginning on the
date of the submission of the report.

(c)

Unmanned Aerial
Vehicle Pilot Program

During the 1-year period beginning on the
date on which the report is submitted under subsection (b), the Secretary shall
conduct a pilot program to test unmanned aerial vehicles for border
surveillance along the international border between Canada and the United
States.

(d)

Construction

Nothing
in this section may be construed as altering or amending the prohibition on the
use of any part of the Army or the Air Force as a posse comitatus under section
1385 of title 18, United States Code.

(e)

Authorization of
Appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of the fiscal years 2008
through 2012 to carry out subsection (a).

103.

Infrastructure

(a)

Construction of
border control facilities

Subject to the availability of
appropriations, the Secretary shall construct all-weather roads and acquire
additional vehicle barriers and facilities necessary to achieve operational
control of the international borders of the United States.

(b)

Authorization of
Appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of the fiscal years 2008
through 2012 to carry out subsection (a).

104.

Ports of
entry

The Secretary is
authorized to—

(1)

construct
additional ports of entry along the international land borders of the United
States, at locations to be determined by the Secretary; and

(2)

make necessary
improvements to the ports of entry in existence on the date of enactment of
this Act.

105.

Secure
communication

The Secretary
shall, as expeditiously as practicable, develop and implement a plan to improve
the use of satellite communications and other technologies to ensure clear and
secure 2-way communication capabilities—

(1)

among all Border
Patrol agents conducting operations between ports of entry;

(2)

between Border
Patrol agents and their respective Border Patrol stations;

(3)

between Border
Patrol agents and residents in remote areas along the international land
borders of the United States; and

(4)

between all
appropriate border security agencies of the Department and State, local, and
tribal law enforcement agencies.

106.

Unmanned aerial
vehicles

(a)

Unmanned aerial
vehicles and associated infrastructure

The Secretary shall
acquire and maintain unmanned aerial vehicles and related equipment for use to
patrol the international borders of the United States, including equipment such
as—

(1)

additional
sensors;

(2)

critical
spares;

(3)

satellite command
and control; and

(4)

other necessary
equipment for operational support.

(b)

Authorization of
appropriations

(1)

In
general

There are authorized to be appropriated to the Secretary
for each of the fiscal years 2008 and 2009 such sums as may be necessary to
carry out subsection (a).

(2)

Availability of
funds

Amounts appropriated pursuant to the authorization of
appropriations in paragraph (1) are authorized to remain available until
expended.

107.

Surveillance
technologies programs

(a)

Aerial
surveillance program

(1)

In
general

In conjunction with the border surveillance plan
developed under section 5201 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1701 note), the Secretary,
not later than 90 days after the date of enactment of this Act, shall develop
and implement a program to fully integrate and utilize aerial surveillance
technologies, including unmanned aerial vehicles, to enhance the security of
the international border between the United States and Canada and the
international border between the United States and Mexico. The goal of the
program shall be to ensure continuous monitoring of each mile of each such
border.

(2)

Assessment and
consultation requirements

In developing the program under this
subsection, the Secretary shall—

(A)

consider current
and proposed aerial surveillance technologies;

(B)

assess the
feasibility and advisability of utilizing such technologies to address border
threats, including an assessment of the technologies considered best suited to
address respective threats;

(C)

consult with the
Secretary of Defense regarding any technologies or equipment, which the
Secretary may deploy along an international border of the United States;
and

(D)

consult with the
Administrator of the Federal Aviation Administration regarding safety, airspace
coordination and regulation, and any other issues necessary for implementation
of the program.

(3)

Additional
requirements

(A)

In
general

The program developed under this subsection shall include
the use of a variety of aerial surveillance technologies in a variety of
topographies and areas, including populated and unpopulated areas located on or
near an international border of the United States, in order to evaluate, for a
range of circumstances—

(i)

the
significance of previous experiences with such technologies in border security
or critical infrastructure protection;

(ii)

the
cost and effectiveness of various technologies for border security, including
varying levels of technical complexity; and

(iii)

liability,
safety, and privacy concerns relating to the utilization of such technologies
for border security.

(4)

Continued use of
aerial surveillance technologies

The Secretary may continue the
operation of aerial surveillance technologies while assessing the effectiveness
of the utilization of such technologies.

(5)

Report to
Congress

Not later than 180 days after implementing the program
under this subsection, the Secretary shall submit to Congress a report
regarding such program. The Secretary shall include in the report a description
of such program together with any recommendations that the Secretary finds
appropriate for enhancing the program.

(6)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary to carry out this subsection.

(b)

Integrated and
Automated Surveillance Program

(1)

Requirement for
program

Subject to the availability of appropriations, the
Secretary shall establish a program to procure additional unmanned aerial
vehicles, cameras, poles, sensors, satellites, radar coverage, and other
technologies necessary to achieve operational control of the international
borders of the United States and to establish a security perimeter known as a
virtual fence along such international borders to provide a
barrier to illegal immigration. Such program shall be known as the Integrated
and Automated Surveillance Program.

(2)

Program
components

The Secretary shall ensure, to the maximum extent
feasible, that—

(A)

the technologies
utilized in the Integrated and Automated Surveillance Program are integrated
and function cohesively in an automated fashion, including the integration of
motion sensor alerts and cameras in a manner where a sensor alert automatically
activates a corresponding camera to pan and tilt in the direction of the
triggered sensor;

(B)

cameras utilized
in the Program do not have to be manually operated;

(C)

such camera views
and positions are not fixed;

(D)

surveillance video
taken by such cameras is able to be viewed at multiple designated
communications centers;

(E)

a standard process
is used to collect, catalog, and report intrusion and response data collected
under the Program;

(F)

future remote
surveillance technology investments and upgrades for the Program can be
integrated with existing systems;

(G)

performance
measures are developed and applied that can evaluate whether the Program is
providing desired results and increasing response effectiveness in monitoring
and detecting illegal intrusions along the international borders of the United
States;

(H)

plans are
developed under the Program to streamline site selection, site validation, and
environmental assessment processes to minimize delays of installing
surveillance technology infrastructure;

(I)

standards are
developed under the Program to expand the shared use of existing private and
governmental structures to install remote surveillance technology
infrastructure where possible; and

(J)

standards are
developed under the Program to identify and deploy the use of nonpermanent or
mobile surveillance platforms that will increase the Secretary’s mobility and
ability to identify illegal border intrusions.

(3)

Report to
Congress

Not later than 1 year after the initial implementation
of the Integrated and Automated Surveillance Program, the Secretary shall
submit to Congress a report regarding the Program. The Secretary shall include
in the report a description of the Program together with any recommendation
that the Secretary finds appropriate for enhancing the program.

(4)

Evaluation of
contractors

(A)

Requirement for
standards

The Secretary shall develop appropriate standards to
evaluate the performance of any contractor providing goods or services to carry
out the Integrated and Automated Surveillance Program.

(B)

Review by the
inspector general

(i)

In
general

The Inspector General of the Department shall review each
new contract related to the Program that has a value of more than $5,000,000 in
a timely manner, to determine whether such contract fully complies with
applicable cost requirements, performance objectives, program milestones, and
schedules.

(ii)

Reports

The
Inspector General shall report the findings of each review carried out under
clause (i) to the Secretary in a timely manner. Not later than 30 days after
the date the Secretary receives a report of findings from the Inspector
General, the Secretary shall submit to the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on Homeland Security of
the House of Representatives a report of such findings and a description of any
the steps that the Secretary has taken or plans to take in response to such
findings.

(5)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary to carry out this subsection.

B

Border Security
Plans, Strategies, and Reports

111.

Surveillance
plan

(a)

Requirement for
Plan

The Secretary shall develop a comprehensive plan for the
systematic surveillance of the international land and maritime borders of the
United States.

(b)

Content

The
plan required by subsection (a) shall include the following:

(1)

An assessment of
existing technologies employed on the international land and maritime borders
of the United States.

(2)

A
description of the compatibility of new surveillance technologies with
surveillance technologies in use by the Secretary on the date of enactment of
this Act.

(3)

A
description of how the Commissioner of the United States Customs and Border
Protection is working, or is expected to work, with the Under Secretary for
Science and Technology of the Department to identify and test surveillance
technology.

(4)

A
description of the specific surveillance technology to be deployed.

(5)

Identification of
any obstacles that may impede such deployment.

(6)

A
detailed estimate of all costs associated with such deployment and with
continued maintenance of such technologies.

(7)

A
description of how the Secretary is working with the Administrator of the
Federal Aviation Administration on safety and airspace control issues
associated with the use of unmanned aerial vehicles.

(8)

A
description of the program to fully integrate and utilize aerial surveillance
technologies developed pursuant to section 107(a).

(9)

A
description of the Integrated and Automated Surveillance Program established
pursuant to section 107(b).

(c)

Submission to
Congress

Not later than 6 months after the date of enactment of
this Act, the Secretary shall submit to Congress the plan required by this
section.

112.

National
Strategy for Border Security

(a)

Requirement for
Strategy

The Secretary, in consultation with the heads of other
appropriate Federal agencies, shall develop a National Strategy for Border
Security that describes actions to be carried out to achieve operational
control over all ports of entry into the United States and the international
land and maritime borders of the United States.

(b)

Content

The
National Strategy for Border Security shall include the following:

(1)

The implementation
schedule for the comprehensive plan for systematic surveillance described in
section 111.

(2)

An assessment of
the threat posed by terrorists and terrorist groups that may try to infiltrate
the United States at locations along the international land and maritime
borders of the United States.

(3)

A
risk assessment for all United States ports of entry and all portions of the
international land and maritime borders of the United States that includes a
description of activities being undertaken—

(A)

to prevent the
entry of terrorists, other unlawful aliens, instruments of terrorism,
narcotics, and other contraband into the United States; and

(B)

to protect
critical infrastructure at or near such ports of entry or borders.

(4)

An assessment of
the legal requirements that prevent achieving and maintaining operational
control over the entire international land and maritime borders of the United
States.

(5)

An assessment of
the most appropriate, practical, and cost-effective means of defending the
international land and maritime borders of the United States against threats to
security and illegal transit, including intelligence capacities, technology,
equipment, personnel, and training needed to address security
vulnerabilities.

(6)

An assessment of
staffing needs for all border security functions, taking into account threat
and vulnerability information pertaining to the borders and the impact of new
security programs, policies, and technologies.

(7)

A
description of the border security roles and missions of Federal, State,
regional, local, and tribal authorities, and recommendations regarding actions
the Secretary can carry out to improve coordination with such authorities to
enable border security and enforcement activities to be carried out in a more
efficient and effective manner.

(8)

An assessment of
existing efforts and technologies used for border security and the effect of
the use of such efforts and technologies on civil rights, private property
rights, privacy rights, and civil liberties, including an assessment of efforts
to take into account asylum seekers, trafficking victims, unaccompanied minor
aliens, and other vulnerable populations.

(9)

A
prioritized list of research and development objectives to enhance the security
of the international land and maritime borders of the United States.

(10)

A description of
ways to ensure that the free flow of travel and commerce is not diminished by
efforts, activities, and programs aimed at securing the international land and
maritime borders of the United States.

(11)

An assessment of
additional detention facilities and beds that are needed to detain unlawful
aliens apprehended at United States ports of entry or along the international
land borders of the United States.

(12)

A description of
the performance metrics to be used to ensure accountability by the bureaus of
the Department in implementing such Strategy.

(13)

A schedule for
the implementation of the security measures described in such Strategy,
including a prioritization of security measures, realistic deadlines for
addressing the security and enforcement needs, an estimate of the resources
needed to carry out such measures, and a description of how such resources
should be allocated.

(c)

Consultation

In
developing the National Strategy for Border Security, the Secretary shall
consult with representatives of—

(1)

State, local, and
tribal authorities with responsibility for locations along the international
land and maritime borders of the United States; and

The
National Strategy for Border Security shall be consistent with the National
Strategy for Maritime Security developed pursuant to Homeland Security
Presidential Directive 13, dated December 21, 2004.

(e)

Submission to
Congress

(1)

Strategy

Not
later than 1 year after the date of enactment of this Act, the Secretary shall
submit to Congress the National Strategy for Border Security.

(2)

Updates

The
Secretary shall submit to Congress any update of such Strategy that the
Secretary determines is necessary, not later than 30 days after such update is
developed.

(f)

Immediate
Action

Nothing in this section or section 111 may be construed to
relieve the Secretary of the responsibility to take all actions necessary and
appropriate to achieve and maintain operational control over the entire
international land and maritime borders of the United States.

113.

Reports on
improving the exchange of information on North American security

(a)

Requirement for
Reports

Not later than 1 year after the date of enactment of this
Act, and annually thereafter, the Secretary of State, in coordination with the
Secretary and the heads of other appropriate Federal agencies, shall submit to
Congress a report on improving the exchange of information related to the
security of North America.

(b)

Contents

Each
report submitted under subsection (a) shall contain a description of the
following:

(1)

Security
clearances and document integrity

The progress made toward the
development of common enrollment, security, technical, and biometric standards
for the issuance, authentication, validation, and repudiation of secure
documents, including—

(A)

technical and
biometric standards based on best practices and consistent with international
standards for the issuance, authentication, validation, and repudiation of
travel documents, including—

(i)

passports;

(ii)

visas; and

(iii)

permanent
resident cards;

(B)

working with
Canada and Mexico to encourage foreign governments to enact laws to combat
alien smuggling and trafficking, and laws to forbid the use and manufacture of
fraudulent travel documents and to promote information sharing;

(C)

applying the
necessary pressures and support to ensure that other countries meet proper
travel document standards and are committed to travel document verification
before the citizens of such countries travel internationally, including travel
by such citizens to the United States; and

(D)

providing technical
assistance for the development and maintenance of a national database built
upon identified best practices for biometrics associated with visa and travel
documents.

(2)

Immigration and
visa management

The progress of efforts to share information
regarding high-risk individuals who may attempt to enter Canada, Mexico, or the
United States, including the progress made—

(A)

in implementing
the Statement of Mutual Understanding on Information Sharing, signed by Canada
and the United States in February 2003; and

(B)

in identifying
trends related to immigration fraud, including asylum and document fraud, and
to analyze such trends.

(3)

Visa policy
coordination and immigration security

The progress made by
Canada, Mexico, and the United States to enhance the security of North America
by cooperating on visa policy and identifying best practices regarding
immigration security, including the progress made—

(A)

in enhancing
consultation among officials who issue visas at the consulates or embassies of
Canada, Mexico, or the United States throughout the world to share information,
trends, and best practices on visa flows;

(B)

in comparing the
procedures and policies of Canada and the United States related to visitor visa
processing, including—

(i)

application
process;

(ii)

interview
policy;

(iii)

general
screening procedures;

(iv)

visa
validity;

(v)

quality control
measures; and

(vi)

access to appeal
or review;

(C)

in exploring
methods for Canada, Mexico, and the United States to waive visa requirements
for nationals and citizens of the same foreign countries;

(D)

in providing
technical assistance for the development and maintenance of a national database
built upon identified best practices for biometrics associated with immigration
violators;

(E)

in developing and
implementing an immigration security strategy for North America that works
toward the development of a common security perimeter by enhancing technical
assistance for programs and systems to support advance automated reporting and
risk targeting of international passengers;

(F)

in sharing
information on lost and stolen passports on a real-time basis among immigration
or law enforcement officials of Canada, Mexico, and the United States;
and

(G)

in collecting 10
fingerprints from each individual who applies for a visa.

(4)

North american
visitor overstay program

The progress made by Canada and the
United States in implementing parallel entry-exit tracking systems that, while
respecting the privacy laws of both countries, share information regarding
third country nationals who have overstayed their period of authorized
admission in either Canada or the United States.

(5)

Terrorist watch
lists

The progress made in enhancing the capacity of the United
States to combat terrorism through the coordination of counterterrorism
efforts, including the progress made—

(A)

in developing and
implementing bilateral agreements between Canada and the United States and
between Mexico and the United States to govern the sharing of terrorist watch
list data and to comprehensively enumerate the uses of such data by the
governments of each country;

(B)

in establishing
appropriate linkages among Canada, Mexico, and the United States Terrorist
Screening Center; and

(C)

in exploring with
foreign governments the establishment of a multilateral watch list mechanism
that would facilitate direct coordination between the country that identifies
an individual as an individual included on a watch list, and the country that
owns such list, including procedures that satisfy the security concerns and are
consistent with the privacy and other laws of each participating
country.

(6)

Money
laundering, currency smuggling, and alien smuggling

The progress
made in improving information sharing and law enforcement cooperation in
combating organized crime, including the progress made—

in determining the
feasibility of formulating a firearms trafficking action plan between Mexico
and the United States;

(C)

in developing a
joint threat assessment on organized crime between Canada and the United
States;

(D)

in determining the
feasibility of formulating a joint threat assessment on organized crime between
Mexico and the United States;

(E)

in developing
mechanisms to exchange information on findings, seizures, and capture of
individuals transporting undeclared currency; and

(F)

in developing and
implementing a plan to combat the transnational threat of illegal drug
trafficking.

(7)

Law enforcement
cooperation

The progress made in enhancing law enforcement
cooperation among Canada, Mexico, and the United States through enhanced
technical assistance for the development and maintenance of a national database
built upon identified best practices for biometrics associated with known and
suspected criminals or terrorists, including exploring the formation of law
enforcement teams that include personnel from the United States and Mexico, and
appropriate procedures for such teams.

114.

Border Patrol
training capacity review

(a)

In
General

The Comptroller General of the United States shall
conduct a review of the basic training provided to Border Patrol agents by the
Secretary to ensure that such training is provided as efficiently and
cost-effectively as possible.

(b)

Components of
Review

The review under subsection (a) shall include the
following components:

(1)

An evaluation of
the length and content of the basic training curriculum provided to new Border
Patrol agents by the Federal Law Enforcement Training Center, including a
description of how such curriculum has changed since September 11, 2001, and an
evaluation of language and cultural diversity training programs provided within
such curriculum.

(2)

A
review and a detailed breakdown of the costs incurred by United States Customs
and Border Protection and the Federal Law Enforcement Training Center to train
1 new Border Patrol agent.

(3)

A
comparison, based on the review and breakdown under paragraph (2), of the
costs, effectiveness, scope, and quality, including geographic characteristics,
with other similar training programs provided by State and local agencies,
nonprofit organizations, universities, and the private sector.

the
cost-effectiveness of increasing the number of Border Patrol agents trained per
year;

(B)

the per agent
costs of basic training; and

(C)

the scope and
quality of basic training needed to fulfill the mission and duties of a Border
Patrol agent.

115.

Secure Border
Initiative financial accountability

(a)

In
General

The Inspector General of the Department shall review each
contract action relating to the Secure Border Initiative having a value of more
than $20,000,000, to determine whether each such action fully complies with
applicable cost requirements, performance objectives, program milestones,
inclusion of small, minority, and women-owned business, and time lines. The
Inspector General shall complete a review under this subsection with respect to
each contract action—

(1)

not later than 60
days after the date of the initiation of the action; and

(2)

upon the conclusion
of the performance of the contract.

(b)

Inspector
General

(1)

Action

If
the Inspector General becomes aware of any improper conduct or wrongdoing in
the course of conducting a contract review under subsection (a), the Inspector
General shall, as expeditiously as practicable, refer information relating to
such improper conduct or wrongdoing to the Secretary, or to another appropriate
official of the Department, who shall determine whether to temporarily suspend
the contractor from further participation in the Secure Border
Initiative.

(2)

Report

Upon
the completion of each review described in subsection (a), the Inspector
General shall submit to the Secretary a report containing the findings of the
review, including findings regarding—

(A)

cost
overruns;

(B)

significant delays
in contract execution;

(C)

lack of rigorous
departmental contract management;

(D)

insufficient
departmental financial oversight;

(E)

bundling that
limits the ability of small businesses to compete; or

(F)

other high-risk
business practices.

(c)

Reports by the
Secretary

(1)

In
general

Not later than 30 days after the receipt of each report
required under subsection (b)(2), the Secretary shall submit a report to the
Committee on the Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives, that describes—

(A)

the findings of
the report received from the Inspector General; and

(B)

the steps the
Secretary has taken, or plans to take, to address the problems identified in
such report.

(2)

Contracts with
foreign companies

Not later than 60 days after the initiation of
each contract action with a company whose headquarters are not based in the
United States, the Secretary shall submit a report to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House of
Representatives, regarding the Secure Border Initiative.

(d)

Reports on
United States Ports

Not later that 30 days after receiving
information regarding a proposed purchase of a contract to manage the
operations of a United States port by a foreign entity, the Committee on
Foreign Investment in the United States shall submit a report to Congress that
describes—

(1)

the proposed
purchase;

(2)

any security
concerns related to the proposed purchase; and

(3)

the manner in
which such security concerns have been addressed.

(e)

Authorization of
Appropriations

In addition to amounts that are otherwise
authorized to be appropriated to the Office of the Inspector General of the
Department, there are authorized to be appropriated to the Office, to enable
the Office to carry out this section—

(1)

for fiscal year
2008, not less than 5 percent of the overall budget of the Office for such
fiscal year;

(2)

for fiscal year
2009, not less than 6 percent of the overall budget of the Office for such
fiscal year; and

(3)

for fiscal year
2010, not less than 7 percent of the overall budget of the Office for such
fiscal year.

C

Southern Border
Security

121.

Improving the
security of Mexico’s southern border

(a)

Technical
Assistance

The Secretary of State, in coordination with the
Secretary, shall work to cooperate with the head of Foreign Affairs Canada and
the appropriate officials of the Government of Mexico to establish a
program—

(1)

to assess the
specific needs of the countries of Central America in maintaining the security
of the international borders of such countries;

(2)

to use the
assessment made under paragraph (1) to determine the financial and technical
support needed by the countries of Central America from Canada, Mexico, and the
United States to meet such needs;

(3)

to provide
technical assistance to the countries of Central America to promote issuance of
secure passports and travel documents by such countries; and

(4)

to encourage the
countries of Central America—

(A)

to control alien
smuggling and trafficking;

(B)

to prevent the use
and manufacture of fraudulent travel documents; and

(C)

to share relevant
information with Mexico, Canada, and the United States.

(b)

Border Security
for the countries of Central America

The Secretary, in
consultation with the Secretary of State, shall work to cooperate—

(1)

with the
appropriate officials of the governments of the countries of Central America to
provide law enforcement assistance to such countries to specifically address
immigration issues to increase the ability of such governments to dismantle
human smuggling organizations and gain additional control over the
international borders between the countries of Central America; and

(2)

with the
appropriate officials of the governments of the countries of Central America to
establish a program to provide needed equipment, technical assistance, and
vehicles to manage, regulate, and patrol such international borders.

(c)

Tracking Central
American Gangs

The Secretary of State, in coordination with the
Secretary and the Director of the Federal Bureau of Investigation, shall work
to cooperate with the appropriate officials of the governments of other
countries of Central America—

(1)

to assess the
direct and indirect impact on the United States and Central America of
deporting violent criminal aliens;

(2)

to establish a
program and database to track individuals involved in Central American gang
activities;

(3)

to develop a
mechanism that is acceptable to the governments of the countries of Central
America and of the United States to notify such a government if an individual
suspected of gang activity will be deported to that country prior to the
deportation and to provide support for the reintegration of such deportees into
that country; and

(4)

to develop an
agreement to share all relevant information related to individuals connected
with Central American gangs.

(d)

Limitations on
Assistance

Any funds made available to carry out this section
shall be subject to the limitations contained in section 551 of the Foreign
Operations, Export Financing, and Related Programs Appropriations Act, 2006
(Public Law 109–102; 119 Stat. 2218).

122.

Report on
deaths at the United States-Mexico border

(a)

Collection of
Statistics

The Commissioner of the United States Customs and
Border Protection shall collect statistics relating to deaths occurring at the
border between the United States and Mexico, including—

(1)

the causes of the
deaths; and

(2)

the total number
of deaths.

(b)

Report

Not
later than 1 year after the date of enactment of this Act, and annually
thereafter, the Commissioner of United States Customs and Border Protection
shall submit to the Secretary a report that—

(1)

analyzes trends
with respect to the statistics collected under subsection (a) during the
preceding year; and

(2)

recommends actions
to reduce the deaths described in subsection (a).

123.

Cooperation
with the Government of Mexico

(a)

Cooperation
Regarding Border Security

The Secretary of State, in cooperation
with the Secretary and representatives of Federal, State, and local law
enforcement agencies that are involved in border security and immigration
enforcement efforts, shall work with the appropriate officials from the
Government of Mexico to improve coordination between the United States and
Mexico regarding—

(1)

improved border
security along the international border between the United States and
Mexico;

(2)

the reduction of
human trafficking and smuggling between the United States and Mexico;

(3)

the reduction of
drug trafficking and smuggling between the United States and Mexico;

(4)

the reduction of
gang membership in the United States and Mexico;

(5)

the reduction of
violence against women in the United States and Mexico; and

(6)

the reduction of
other violence and criminal activity.

(b)

Cooperation
Regarding Education on Immigration Laws

The Secretary of State,
in cooperation with other appropriate Federal officials, shall work with the
appropriate officials from the Government of Mexico to carry out activities to
educate citizens and nationals of Mexico regarding eligibility for status as a
nonimmigrant under Federal law to ensure that the citizens and nationals are
not exploited while working in the United States.

(c)

Cooperation
Regarding Circular Migration

The Secretary of State, in
cooperation with the Secretary of Labor and other appropriate Federal
officials, shall work with the appropriate officials from the Government of
Mexico to improve coordination between the United States and Mexico to
encourage circular migration, including assisting in the development of
economic opportunities and providing job training for citizens and nationals in
Mexico.

(d)

Consultation
Requirement

Federal, State, and local representatives in the
United States shall work to cooperate with their counterparts in Mexico
concerning border security structures along the international border between
the United States and Mexico, as authorized by this title, in order to—

(1)

solicit the views
of affected communities;

(2)

lessen tensions;
and

(3)

foster greater
understanding and stronger cooperation on this and other important security
issues of mutual concern.

(e)

Annual
Report

Not later than 180 days after the date of enactment of
this Act, and annually thereafter, the Secretary of State shall submit to
Congress a report on the actions taken by the United States and Mexico under
this section.

124.

Temporary
National Guard support for securing the southern land border of the United
States

(a)

Authority To
Provide Assistance

(1)

In
general

With the approval of the Secretary of Defense, the
Governor of a State may order any units or personnel of the National Guard of
such State to perform annual training duty under section 502(a) of title 32,
United States Code, to carry out in any State along the southern land border of
the United States the activities authorized in subsection (b), for the purpose
of securing such border. Such duty shall not exceed 21 days in any year.

(2)

Support

With
the approval of the Secretary of Defense, the Governor of a State may order any
units or personnel of the National Guard of such State to perform duty under
section 502(f) of title 32, United States Code, to provide command, control,
and continuity of support for units or personnel performing annual training
duty under paragraph (1).

(b)

Authorized
Activities

The activities authorized by this subsection are any
of the following:

(1)

Ground
reconnaissance activities.

(2)

Airborne
reconnaissance activities.

(3)

Logistical
support.

(4)

Provision of
translation services and training.

(5)

Administrative
support services.

(6)

Technical training
services.

(7)

Emergency medical
assistance and services.

(8)

Communications
services.

(9)

Rescue of aliens
in peril.

(10)

Construction of
roadways, patrol roads, fences, barriers, and other facilities to secure the
southern land border of the United States.

(11)

Ground and air
transportation.

(c)

Cooperative
Agreements

Units and personnel of the National Guard of a State
may perform activities in another State under subsection (a) only pursuant to
the terms of an emergency management assistance compact or other cooperative
arrangement entered into between Governors of such States for purposes of this
section, and only with the approval of the Secretary of Defense.

(d)

Coordination of
Assistance

The Secretary of Homeland Security shall, in
consultation with the Secretary of Defense and the Governors of the States
concerned, coordinate the performance of activities under this section by units
and personnel of the National Guard.

(e)

Annual
Training

Annual training duty performed by members of the
National Guard under subsection (a) shall be appropriate for the units and
individual members concerned, taking into account the types of units and
military occupational specialties of individual members performing such
duty.

(f)

Definitions

In
this section:

(1)

The term
Governor of a State means, in the case of the District of
Columbia, the Commanding General of the National Guard of the District of
Columbia.

(2)

The term
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3)

The term
State along the southern border of the United States means each of
the following:

(A)

The State of
Arizona.

(B)

The State of
California.

(C)

The State of New
Mexico.

(D)

The State of
Texas.

(g)

Duration of
Authority

The authority of this section shall expire on January
1, 2009.

(h)

Prohibition on
Direct Participation in Law Enforcement

Activities carried out
under the authority of this section shall not include the direct participation
of a member of the National Guard in a search, seizure, arrest, or similar
activity.

125.

United
States-Mexico Border Enforcement Review Commission

(a)

Establishment of
commission

(1)

In
general

There is established an independent commission to be
known as the United States-Mexico Border Enforcement Review Commission
(referred to in this section as the Commission).

(2)

Purposes

The
purposes of the Commission are—

(A)

to study the
overall enforcement and detention strategies, programs and policies of Federal
agencies along the United States-Mexico border; and

(B)

to make
recommendations to the President and Congress with respect to such strategies,
programs and policies.

(3)

Membership

The
Commission shall be composed of 16 voting members, who shall be appointed as
follows:

(A)

The Governors of
the States of California, New Mexico, Arizona, and Texas shall each appoint 4
voting members of whom—

(i)

1
shall be a local elected official from the State's border region;

(ii)

1
shall be a local law enforcement official from the State's border region;
and

(iii)

2
shall be from the State's communities of academia, religious leaders, civic
leaders or community leaders.

(B)

2 nonvoting
members, of whom—

(i)

1
shall be appointed by the Secretary; and

(ii)

1
shall be appointed by the Attorney General.

(4)

Qualifications

(A)

In
general

Members of the Commission shall be—

(i)

individuals with
expertise in migration, border enforcement and protection, civil and human
rights, community relations, cross-border trade and commerce or other pertinent
qualifications or experience; and

(ii)

representative of
a broad cross section of perspectives from the region along the international
border between the United States and Mexico;

(B)

Political
affiliation

Not more than 2 members of the Commission appointed
by each Governor under paragraph (3)(A) may be members of the same political
party.

(C)

Nongovernmental
appointees

An individual appointed as a voting member to the
Commission may not be an officer or employee of the Federal Government.

(5)

Deadline for
appointment

All members of the Commission shall be appointed not
later than 6 months after the enactment of this Act. If any member of the
Commission described in paragraph (3)(A) is not appointed by such date, the
Commission shall carry out its duties under this section without the
participation of such member.

(6)

Term of
service

The term of office for members shall be for the life of
the Commission, or 3 years, whichever is sooner.

(7)

Vacancies

Any
vacancy in the Commission shall not affect its powers, but shall be filled in
the same manner in which the original appointment was made.

(8)

Meetings

(A)

Initial
meeting

The Commission shall meet and begin the operations of the
Commission as soon as practicable.

(B)

Subsequent
meetings

After its initial meeting, the Commission shall meet
upon the call of the chairman or a majority of its members.

(9)

Quorum

Nine
members of the Commission shall constitute a quorum.

(10)

Chair and vice
chair

The voting members of the Commission shall elect a Chairman
and Vice Chairman from among its members. The term of office shall be for the
life of the Commission.

The Commission may seek directly from any
department or agency of the United States such information, including
suggestions, estimates, and statistics, as allowed by law and as the Commission
considers necessary to carry out the provisions of this section. Upon request
of the Commission, the head of such department or agency shall furnish such
information to the Commission.

(2)

Assistance from
Federal agencies

The Administrator of General Services shall, on
a reimbursable basis, provide the Commission with administrative support and
other services for the performance of the Commission’s functions. The
departments and agencies of the United States may provide the Commission with
such services, funds, facilities, staff, and other support services as they
determine advisable and as authorized by law.

(d)

Compensation

(1)

In
general

Members of the Commission shall serve without pay.

(2)

Reimbursement of
expenses

All members of the Commission shall be reimbursed for
reasonable travel expenses and subsistence, and other reasonable and necessary
expenses incurred by them in the performance of their duties.

(e)

Report

Not
later than 2 years after the date of the first meeting called pursuant to
(a)(8)(A), the Commission shall submit a report to the President and Congress
that contains—

suggestions for
the implementation of the Commission's recommendations; and

(4)

a
recommendation as to whether the Commission should continue to exist after the
date of termination described in subsection (g), and if so, a description of
the purposes and duties recommended to be carried out by the Commission after
such date.

(f)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary to carry out this section.

(g)

Sunset

Unless
the Commission is re-authorized by Congress, the Commission shall terminate on
the date that is 90 days after the date the Commission submits the report
described in subsection (e).

D

Secure Entry
Initiatives

131.

Biometric data
enhancements

Not later than
December 31, 2008, the Secretary shall—

(1)

in consultation
with the Attorney General, enhance connectivity between the Automated Biometric
Fingerprint Identification System (IDENT) of the Department and the Integrated
Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of
Investigation to ensure more expeditious data searches; and

(2)

in consultation
with the Secretary of State, collect all fingerprints from each alien required
to provide fingerprints during the alien’s initial enrollment in the integrated
entry and exit data system described in section 110 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a).

132.

US–VISIT
System

Not later than 6 months
after the date of enactment of this Act, the Secretary, in consultation with
the heads of other appropriate Federal agencies, shall submit to Congress a
schedule for—

(1)

equipping all land
border ports of entry of the United States with the U.S.-Visitor and Immigrant
Status Indicator Technology (US–VISIT) system implemented under the authority
of section 110 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1365a);

(2)

developing and
deploying at such ports of entry the exit component of the US–VISIT system;
and

(3)

making
interoperable all immigration screening systems operated by the
Secretary.

133.

Document fraud
detection

(a)

Training

Subject
to the availability of appropriations, the Secretary shall provide all officers
of the United States Customs and Border Protection with training in identifying
and detecting fraudulent travel documents. Such training shall be developed in
consultation with the head of the Forensic Document Laboratory of United States
Immigration and Customs Enforcement.

(b)

Forensic
Document Laboratory

The Secretary shall provide all United States
Customs and Border Protection officers with access to the Forensic Document
Laboratory.

(c)

Assessment

(1)

Requirement for
assessment

The Inspector General of the Department shall conduct
an independent assessment of the accuracy and reliability of the Forensic
Document Laboratory.

(2)

Report to
congress

Not later than 6 months after the date of enactment of
this Act, the Inspector General shall submit to Congress the findings of the
assessment required by paragraph (1).

(d)

Authorization of
Appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary for each of fiscal years 2008 through
2012 to carry out this section.

by striking
Attorney General each place it appears and inserting
Secretary of Homeland Security;

(2)

in the heading, by
striking entry and exit
documents and inserting travel
and entry documents and evidence of status;

(3)

in subsection
(b)(1)—

(A)

by striking
Not later than October 26, 2004, the and inserting
The; and

(B)

by striking
visas and both places it appears and inserting visas,
evidence of status, and;

(4)

by redesignating
subsection (d) as subsection (e); and

(5)

by inserting after
subsection (c) the following:

(d)

Other
Documents

Not later than December 31, 2008, every document, other
than an interim document, issued by the Secretary of Homeland Security which
may be used as evidence of an alien’s authorization to travel shall be
machine-readable and tamper-resistant, and shall incorporate a biometric
identifier to allow the Secretary of Homeland Security to verify electronically
the identity and status of the
alien.

.

135.

Biometric
entry-exit system

(a)

Collection of
biometric data from aliens departing the United States

Section
215 (8 U.S.C. 1185) is amended—

(1)

by redesignating
subsection (c) as subsection (g);

(2)

by moving
subsection (g), as redesignated by paragraph (1), to the end; and

(3)

by inserting after
subsection (b) the following:

(c)

The Secretary of
Homeland Security is authorized to require aliens departing the United States
to provide biometric data and other information relating to their immigration
status.

.

(b)

Inspection of
applicants for admission

Section 235(d) (8 U.S.C. 1225(d)) is
amended by adding at the end the following:

any applicant for
admission or alien seeking to transit through the United States; or

(B)

any lawful
permanent resident who is entering the United States and who is not regarded as
seeking admission pursuant to section
101(a)(13)(C).

.

(c)

Collection of
biometric data from alien crewmen

Section 252 (8 U.S.C. 1282) is
amended by adding at the end the following:

(d)

An immigration
officer is authorized to collect biometric data from an alien crewman seeking
permission to land temporarily in the United
States.

.

(d)

Grounds of
inadmissibility

Section 212 (8 U.S.C. 1182) is amended—

(1)

in subsection
(a)(7), by adding at the end the following:

(C)

Withholders of
biometric data

Any alien who knowingly fails to comply with a
lawful request for biometric data under section 215(c) or 235(d) is
inadmissible.

;
and

(2)

in
subsection (d), by inserting after paragraph (1) the following:

(2)

The Secretary of
Homeland Security shall determine whether a ground for inadmissibility exists
with respect to an alien described in subparagraph (C) of subsection (a)(7) and
may waive the application of such subparagraph for an individual alien or a
class of aliens, at the discretion of the
Secretary.

In
fully implementing the automated biometric entry and exit data system under
this section, the Secretary is not required to comply with the requirements of
chapter 5 of title 5, United States Code (commonly referred to as the
Administrative Procedure Act) or any other law relating to rulemaking,
information collection, or publication in the Federal
Register.

;
and

(2)

in subsection
(l)—

(A)

by striking
There are authorized and inserting the following:

(1)

In
general

There are
authorized

;
and

(B)

by adding at the
end the following:

(2)

Implementation
at all land border ports of entry

There are authorized to be
appropriated such sums as may be necessary for each of fiscal years 2008 and
2009 to implement the automated biometric entry and exit data system at all
land border ports of
entry.

.

136.

Evasion of
inspection or violation of arrival, reporting, entry, or clearance
requirements

(a)

In
General

Chapter 27 of title 18, United States Code, is amended by
adding at the end the following:

556.

Evasion of
inspection or violation of arrival, reporting, entry, or clearance
requirements

(a)

Prohibition

A
person at a port of entry or customs or immigration checkpoint shall be
punished as described in subsection (b) if such person attempts to elude or
eludes customs, immigration, or agriculture inspection or fails to stop at the
command of an officer or employee of the United States charged with enforcing
the immigration, customs, or other laws of the United States at a port of entry
or customs or immigration checkpoint.

(b)

Penalties

A
person who commits an offense described in subsection (a) shall be—

(1)

fined under this
title;

(2)(A)

imprisoned for not more
than 3 years, or both;

(B)

imprisoned for not more than 10 years,
or both, if in commission of this violation, such person attempts to inflict or
inflicts bodily injury (as defined in section 1365(h) of this title); or

(C)

imprisoned for any term of years or
for life, or both, if death results, and may be sentenced to death; or

(3)

both fined and
imprisoned under this subsection.

(c)

Conspiracy

If
2 or more persons conspire to commit an offense described in subsection (a),
and 1 or more of such persons do any act to effect the object of the
conspiracy, each shall be punishable as a principal, except that the sentence
of death may not be imposed.

(d)

Prima Facie
Evidence

For the purposes of seizure and forfeiture under
applicable law, in the case of use of a vehicle or other conveyance in the
commission of this offense, or in the case of disregarding or disobeying the
lawful authority or command of any officer or employee of the United States
under section 111(b) of this title, such conduct shall constitute prima facie
evidence of smuggling aliens or
merchandise.

.

(b)

Conforming
amendment

The table of sections for chapter 27 of title 18,
United States Code, is amended by inserting at the end:

556. Evasion of inspection or during
violation of arrival, reporting, entry, or clearance
requirements.

.

(c)

Failure To Obey
Border Enforcement Officers

Section 111 of title 18, United
States Code, is amended by inserting after subsection (b) the following:

(c)

Failure To Obey
Lawful Orders of Border Enforcement Officers

Whoever willfully
disregards or disobeys the lawful authority or command of any officer or
employee of the United States charged with enforcing the immigration, customs,
or other laws of the United States while engaged in, or on account of, the
performance of official duties shall be fined under this title or imprisoned
for not more than 5 years, or
both.

.

(d)

Technical
amendments

(1)

In
general

Chapter 27 of title 18, United States Code, is amended by
redesignating the section 554 added by section 551(a) of the Department of
Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1389)
(relating to border tunnels and passages) as section 555.

(2)

Table of
sections

The table of sections for chapter 27 of title 18, United
States Code, is amended—

(A)

by striking the
following:

554. Border tunnels and
passages.

;
and

(B)

inserting the
following:

555. Border tunnels and
passages.

.

(3)

Criminal
forfeiture

Section 982(a)(6)(A) of title 18, United States Code,
is amended by striking 554 and inserting
555.

(4)

Directive to the
United States Sentencing Commission

Section 551(d) of the
Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295;
120 Stat. 1390) is amended in paragraphs (1) and (2)(A) by striking
554 and inserting 555.

E

Law Enforcement
Relief for States

141.

Border relief
grant program

(a)

Grants
Authorized

(1)

In
general

The Secretary is authorized to award grants, subject to
the availability of appropriations, to an eligible law enforcement agency to
provide assistance to such agency to address—

(A)

criminal activity
that occurs in the jurisdiction of such agency by virtue of such agency’s
proximity to the United States border; and

(B)

the impact of any
lack of security along the United States border.

(2)

Duration

Grants
may be awarded under this subsection during fiscal years 2008 through
2012.

(3)

Competitive
basis

The Secretary shall award grants under this subsection on a
competitive basis, except that the Secretary shall give priority to
applications from any eligible law enforcement agency serving a community with
a population of less than 50,000.

(b)

Use of
Funds

Grants awarded pursuant to subsection (a) may only be used
to provide additional resources for an eligible law enforcement agency to
address criminal activity occurring along any such border, including—

(1)

to obtain
equipment;

(2)

to hire additional
personnel;

(3)

to upgrade and
maintain law enforcement technology;

(4)

to
cover operational costs, including overtime and transportation costs;
and

(5)

such other
resources as are available to assist that agency.

(c)

Application

(1)

In
general

Each eligible law enforcement agency seeking a grant
under this section shall submit an application to the Secretary at such time,
in such manner, and accompanied by such information as the Secretary may
reasonably require.

(2)

Contents

Each
application submitted pursuant to paragraph (1) shall—

(A)

describe the
activities for which assistance under this section is sought; and

(B)

provide such
additional assurances as the Secretary determines to be essential to ensure
compliance with the requirements of this section.

(d)

Definitions

For
the purposes of this section:

(1)

Eligible law
enforcement agency

The term eligible law enforcement
agency means a tribal, State, or local law enforcement agency—

(A)

located in a
county that is not more than 100 miles from a United States border with—

(i)

Canada; or

(ii)

Mexico; or

(B)

located in a
county more than 100 miles from any such border, but where such county has been
certified by the Secretary as a High Impact Area.

(2)

High impact
area

The term High Impact Area means any county
designated by the Secretary as such, taking into consideration—

(A)

whether local law
enforcement agencies in that county have the resources to protect the lives,
property, safety, or welfare of the residents of that county;

(B)

the relationship
between any lack of security along the United States border and the rise, if
any, of criminal activity in that county; and

(C)

any other unique
challenges that local law enforcement face due to a lack of security along the
United States border.

(e)

Authorization of
Appropriations

(1)

In
general

There are authorized to be appropriated $50,000,000 for
each of fiscal years 2008 through 2012 to carry out the provisions of this
section.

(2)

Division of
authorized funds

Of the amounts authorized under paragraph
(1)—

(A)

2/3
shall be set aside for eligible law enforcement agencies located in the 6
States with the largest number of undocumented alien apprehensions; and

(B)

1/3
shall be set aside for areas designated as a High Impact Area under subsection
(d).

(f)

Supplement Not
Supplant

Amounts appropriated for grants under this section shall
be used to supplement and not supplant other State and local public funds
obligated for the purposes provided under this title.

(g)

Enforcement of
Federal immigration law

Nothing in this section shall be construed
to authorize State or local law enforcement agencies or their officers to
exercise Federal immigration law enforcement authority.

142.

Northern and
southern border prosecution initiative

(a)

Reimbursement to
State and Local Prosecutors for Prosecuting Federally Initiated Drug
Cases

The Attorney General shall, subject to the availability of
appropriations, reimburse State and county prosecutors located in States along
the Northern or Southern border of the United States for prosecuting federally
initiated and referred drug cases.

(b)

Authorization of
Appropriations

There are authorized to be appropriated
$50,000,000 for each of the fiscal years 2008 through 2013 to carry out
subsection (a).

F

Rapid Response
Measures

151.

Deployment of
Border Patrol agents

(a)

Emergency
deployment of Border Patrol agents

(1)

In
general

If the Governor of a State on an international border of
the United States declares an international border security emergency and
requests additional agents of the Border Patrol (referred to in this subtitle
as agents) from the Secretary, the Secretary, subject to
paragraphs (2) and (3), may provide the State with not more than 1,000
additional agents for the purpose of patrolling and defending the international
border, in order to prevent individuals from crossing the international border
into the United States at any location other than an authorized port of
entry.

(2)

Consultation

Upon
receiving a request for agents under paragraph (1), the Secretary, after
consultation with the President, shall grant such request to the extent that
providing such agents will not significantly impair the Department’s ability to
provide border security for any other State.

(3)

Collective
bargaining

Emergency deployments under this subsection shall be
made in accordance with all applicable collective bargaining agreements and
obligations.

(b)

Elimination of
fixed deployment of Border Patrol agents

The Secretary shall
ensure that agents are not precluded from performing patrol duties and
apprehending violators of law, except in unusual circumstances if the temporary
use of fixed deployment positions is necessary.

152.

Border Patrol
major assets

(a)

Control of Border
Patrol assets

The Border Patrol shall have complete and exclusive
administrative and operational control over all the assets utilized in carrying
out its mission, including aircraft, watercraft, vehicles, detention space,
transportation, and all of the personnel associated with such assets.

(b)

Helicopters and
Power Boats

(1)

Helicopters

The
Secretary shall increase, by not less than 100, the number of helicopters under
the control of the Border Patrol. The Secretary shall ensure that appropriate
types of helicopters are procured for the various missions being
performed.

(2)

Power
boats

The Secretary shall increase, by not less than 250, the
number of power boats under the control of the Border Patrol. The Secretary
shall ensure that the types of power boats that are procured are appropriate
for both the waterways in which they are used and the mission
requirements.

(3)

Use and
training

The Secretary shall—

(A)

establish an
overall policy on how the helicopters and power boats procured under this
subsection will be used; and

(B)

implement training
programs for the agents who use such assets, including safe operating
procedures and rescue operations.

(c)

Motor
Vehicles

(1)

Quantity

The
Secretary shall establish a fleet of motor vehicles appropriate for use by the
Border Patrol that will permit a ratio of not less than 1 police-type vehicle
for every 3 agents. These police-type vehicles shall be replaced not less often
than once every 3 years. The Secretary shall ensure that there are sufficient
numbers and types of other motor vehicles to support the mission of the Border
Patrol.

(2)

Features

All
motor vehicles purchased for the Border Patrol shall—

(A)

be appropriate for
the mission of the Border Patrol; and

(B)

have a panic
button and a global positioning system device that is activated solely in
emergency situations to track the location of agents in distress.

153.

Electronic
equipment

(a)

Portable
Computers

The Secretary shall ensure that each police-type motor
vehicle in the fleet of the Border Patrol is equipped with a portable computer
with access to all necessary law enforcement databases and otherwise suited to
the unique operational requirements of the Border Patrol.

(b)

Radio
Equipment

The Secretary shall augment the existing radio
communications system so that all law enforcement personnel working in each
area where Border Patrol operations are conducted have clear and encrypted
2-way radio communication capabilities at all times. Each portable
communications device shall be equipped with a panic button and a global
positioning system device that is activated solely in emergency situations to
track the location of agents in distress.

(c)

Handheld Global
Positioning System Devices

The Secretary shall ensure that each
Border Patrol agent is issued a state-of-the-art handheld global positioning
system device for navigational purposes.

(d)

Night Vision
Equipment

The Secretary shall ensure that sufficient quantities
of state-of-the-art night vision equipment are procured and maintained to
enable each Border Patrol agent working during the hours of darkness to be
equipped with a portable night vision device.

154.

Personal
equipment

(a)

Border
Armor

The Secretary shall ensure that every agent is issued
high-quality body armor that is appropriate for the climate and risks faced by
the agent. Each agent shall be permitted to select from among a variety of
approved brands and styles. Agents shall be strongly encouraged, but not
required, to wear such body armor whenever practicable. All body armor shall be
replaced not less often than once every 5 years.

(b)

Weapons

The
Secretary shall ensure that agents are equipped with weapons that are reliable
and effective to protect themselves, their fellow agents, and innocent third
parties from the threats posed by armed criminals. The Secretary shall ensure
that the policies of the Department authorize all agents to carry weapons that
are suited to the potential threats that they face.

(c)

Uniforms

The
Secretary shall ensure that all agents are provided with all necessary uniform
items, including outerwear suited to the climate, footwear, belts, holsters,
and personal protective equipment, at no cost to such agents. Such items shall
be replaced at no cost to such agents as such items become worn or
unserviceable or no longer fit properly.

155.

Authorization
of appropriations

There are
authorized to be appropriated to the Secretary such sums as may be necessary
for each of the fiscal years 2008 through 2012 to carry out this
subtitle.

G

Border
Infrastructure and Technology Modernization

161.

Definitions

In this subtitle:

(1)

Commissioner

The
term Commissioner means the Commissioner of United States Customs
and Border Protection.

(2)

Northern
border

The term northern border means the
international border between the United States and Canada.

(3)

Southern
border

The term southern border means the
international border between the United States and Mexico.

162.

Port of Entry
Infrastructure Assessment Study

(a)

Requirement To
Update

Not later than January 31 of each year, the Administrator
of General Services shall update the Port of Entry Infrastructure Assessment
Study prepared by United States Customs and Border Protection in accordance
with the matter relating to the ports of entry infrastructure assessment that
is set out in the joint explanatory statement in the conference report
accompanying H.R. 2490 of the 106th Congress, 1st session (House of
Representatives Rep. No. 106–319, on page 67) and submit such updated study to
Congress.

(b)

Consultation

In
preparing the updated studies required in subsection (a), the Administrator of
General Services shall consult with the Director of the Office of Management
and Budget, the Secretary, and the Commissioner.

(c)

Content

Each
updated study required in subsection (a) shall—

(1)

identify port of
entry infrastructure and technology improvement projects that would enhance
border security and facilitate the flow of legitimate commerce if
implemented;

(2)

include the
projects identified in the National Land Border Security Plan required by
section 164; and

(3)

prioritize the
projects described in paragraphs (1) and (2) based on the ability of a project
to—

(A)

fulfill immediate
security requirements; and

(B)

facilitate trade
across the borders of the United States.

(d)

Project
Implementation

The Commissioner shall implement the
infrastructure and technology improvement projects described in subsection (c)
in the order of priority assigned to each project under paragraph (3) of such
subsection.

(e)

Divergence From
Priorities

The Commissioner may diverge from the priority order
if the Commissioner determines that significantly changed circumstances, such
as immediate security needs or changes in infrastructure in Mexico or Canada,
compellingly alter the need for a project in the United States.

163.

National Land
Border Security Plan

(a)

In
General

Not later than 1 year after the date of enactment of this
Act, an annually thereafter, the Secretary, after consultation with
representatives of Federal, State, and local law enforcement agencies and
private entities that are involved in international trade across the northern
border or the southern border, shall submit a National Land Border Security
Plan to Congress.

(b)

Vulnerability
Assessment

(1)

In
general

The plan required in subsection (a) shall include a
vulnerability assessment of each port of entry located on the northern border
or the southern border.

(2)

Port security
coordinators

The Secretary may establish 1 or more port security
coordinators at each port of entry located on the northern border or the
southern border—

(A)

to assist in
conducting a vulnerability assessment at such port; and

(B)

to provide other
assistance with the preparation of the plan required in subsection (a).

164.

Expansion of
commerce security programs

(a)

Customs-Trade
Partnership Against Terrorism

(1)

In
general

Not later than 180 days after the date of enactment of
this Act, the Commissioner, in consultation with the Secretary, shall develop a
plan to expand the programs of the Customs–Trade Partnership Against Terrorism
established pursuant to section 211 of the SAFE Port Act (6 U.S.C. 961),
including adding additional personnel for such programs, along the northern
border and southern border, including the following programs:

Not later than 180 days after the date of
enactment of this Act, the Commissioner shall implement, on a demonstration
basis, at least 1 Customs–Trade Partnership Against Terrorism program, which
has been successfully implemented along the northern border, along the southern
border.

(b)

Demonstration
Program

Not later than 180 days after the date of enactment of
this Act, the Commissioner shall establish a demonstration program to develop a
cooperative trade security system to improve supply chain security.

165.

Port of entry
technology demonstration program

(a)

Establishment

The
Secretary shall carry out a technology demonstration program to—

(1)

test and evaluate
new port of entry technologies;

(2)

refine port of entry
technologies and operational concepts; and

(3)

train personnel
under realistic conditions.

(b)

Technology and
Facilities

(1)

Technology
testing

Under the technology demonstration program, the Secretary
shall test technologies that enhance port of entry operations, including
operations related to—

(A)

inspections;

(B)

communications;

(C)

port
tracking;

(D)

identification of
persons and cargo;

(E)

sensory
devices;

(F)

personal
detection;

(G)

decision support;
and

(H)

the detection and
identification of weapons of mass destruction.

(2)

Development of
facilities

At a demonstration site selected pursuant to
subsection (c)(2), the Secretary shall develop facilities to provide
appropriate training to law enforcement personnel who have responsibility for
border security, including—

(A)

cross-training
among agencies;

(B)

advanced law
enforcement training; and

(C)

equipment
orientation.

(c)

Demonstration
Sites

(1)

Number

The
Secretary shall carry out the demonstration program at not less than 3 sites
and not more than 5 sites.

(2)

Selection
criteria

To ensure that at least 1 of the facilities selected as
a port of entry demonstration site for the demonstration program has the most
up-to-date design, contains sufficient space to conduct the demonstration
program, has a traffic volume low enough to easily incorporate new technologies
without interrupting normal processing activity, and is able to efficiently
carry out demonstration and port of entry operations, at least 1 port of entry
selected as a demonstration site shall—

(A)

have been
established not more than 15 years before the date of enactment of this
Act;

(B)

consist of not
less than 65 acres, with the possibility of expansion to not less than 25
adjacent acres; and

(C)

have serviced an
average of not more than 50,000 vehicles per month during the 1-year period
ending on the date of enactment of this Act.

(d)

Relationship
With Other Agencies

The Secretary shall permit personnel from an
appropriate Federal or State agency to utilize a demonstration site described
in subsection (c) to test technologies that enhance port of entry operations,
including technologies described in subparagraphs (A) through (H) of subsection
(b)(1).

(e)

Report

(1)

Requirement

Not
later than 1 year after the date of enactment of this Act, and annually
thereafter, the Secretary shall submit to Congress a report on the activities
carried out at each demonstration site under the technology demonstration
program established under this section.

(2)

Content

The
report submitted under paragraph (1) shall include an assessment by the
Secretary of the feasibility of incorporating any demonstrated technology for
use throughout United States Customs and Border Protection.

166.

Authorization
of appropriations

(a)

In
General

In addition to any funds otherwise available, there are
authorized to be appropriated such sums as may be necessary for the fiscal
years 2008 through 2012 to carry out this subtitle.

(b)

International
Agreements

Amounts appropriated pursuant to the authorization of
appropriations in subsection (a) may be used for the implementation of projects
described in the Declaration on Embracing Technology and Cooperation to Promote
the Secure and Efficient Flow of People and Commerce across our Shared Border
between the United States and Mexico, agreed to March 22, 2002, Monterrey,
Mexico or the Smart Border Declaration between the United States and Canada,
agreed to December 12, 2001, Ottawa, Canada that are consistent with the
provisions of this subtitle.

H

Safe and Secure
Detention

171.

Definitions

In this subtitle:

(1)

Asylum
seeker

The term asylum seeker means an applicant for
asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158)
or for withholding of removal under section 241(b)(3) of that
Act (8 U.S.C. 1231(b)(3)) or an alien
who indicates an intention to apply for relief under either such section and
does not include a person with respect to whom a final adjudication denying an
application made under either such section has been entered.

(2)

Credible fear of
persecution

The term credible fear of persecution
has the meaning given that term in section 235(b)(1)(B)(v) of the
Immigration and Nationality Act (8
U.S.C. 1225(b)(1)(B)(v)).

(3)

Detainee

The
term detainee means an alien in the Department's custody held in a
detention facility.

(4)

Detention
facility

The term detention facility means any
Federal facility in which an asylum seeker, an alien detained pending the
outcome of a removal proceeding, or an alien detained pending the execution of
a final order of removal, is detained for more than 72 hours, or any other
facility in which such detention services are provided to the Federal
Government by contract, and does not include detention at any port of entry in
the United States.

(5)

Reasonable fear
of persecution or torture

The term reasonable fear of
persecution or torture has the meaning described in section 208.31 of
title 8, Code of Federal Regulations.

(6)

Standard

The
term standard means any policy, procedure, or other
requirement.

(7)

Vulnerable
populations

The term vulnerable populations means
classes of aliens subject to the Immigration and Nationality Act (8 U.S.C. 1101
et seq.) who have special needs requiring special consideration and treatment
by virtue of their vulnerable characteristics, including experiences of, or
risk of, abuse, mistreatment, or other serious harms threatening their health
or safety. Vulnerable populations include the following:

(A)

Asylum
seekers.

(B)

Refugees admitted
under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157) and
individuals seeking such admission.

(C)

Aliens whose
deportation is being withheld under section 243(h) of the Immigration and
Nationality Act (as in effect immediately before the effective date of section
307 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(Public Law 104–208; 110 Stat. 3009–612)) or section 241(b)(3) of the
Immigration and Nationality Act (8 U.S.C. 1231(b)(3)).

(D)

Aliens granted or
seeking protection under article 3 of the Convention Against Torture and other
Cruel, Inhumane, or Degrading Treatment or Punishment, done at New York,
December 10, 1994.

(E)

Applicants for
relief and benefits under the Immigration and Nationality Act pursuant to the
amendments made by the Trafficking Victims Protection Act of 2000 (division A
of Public Law 106–386; 114 Stat. 1464), including applicants for nonimmigrant
status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)).

(F)

Applicants for
relief and benefits under the Immigration and Nationality Act pursuant to the
amendments made by the Violence Against Women Act of 2000 (division B of Public
Law 106–386; 114 Stat. 1491).

The Secretary shall establish quality assurance
procedures to ensure the accuracy and verifiability of signed or sworn
statements taken by employees of the Department exercising expedited removal
authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C.
1225(b)).

(b)

Factors relating
to sworn statements

Where practicable, as determined by the sole
and unreviewable discretion of the Secretary, the quality assurance procedures
established pursuant to this section shall include taped interviews to ensure
the accuracy and verifiability of signed or sworn statements taken by employees
of the Department.

(c)

Interpreters

The
Secretary shall ensure that a professional fluent interpreter is used when the
interviewing officer does not speak a language understood by the alien and
there is no other Federal, State, or local government employee available who is
able to interpret effectively, accurately, and impartially.

173.

Procedures
governing detention decisions

Section 236 (8 U.S.C. 1226) is
amended—

(1)

in subsection
(a)—

(A)

in the matter
preceding paragraph (1)—

(i)

in
the first sentence by striking Attorney General and inserting
Secretary of Homeland Security;

(ii)

by
striking (c) and inserting (d); and

(iii)

in
the second sentence by striking Attorney General and inserting
Secretary;

In the case of a decision under subsection (a) or (d),
the following shall apply:

(A)

The decision shall
be made in writing and shall be served upon the alien. A decision to continue
detention without bond or parole shall specify in writing the reasons for that
decision.

(B)

The decision shall
be served upon the alien within 72 hours of the alien's detention or, in the
case of an alien subject to section 235 or 241(a)(5) who must establish a
credible fear of persecution or a reasonable fear of persecution or torture in
order to proceed in immigration court, within 72 hours of a positive credible
fear of persecution or reasonable fear of persecution or torture
determination.

(2)

Criteria to be
considered

The criteria to be considered by the Secretary and the
Attorney General in making a custody decision shall include—

(A)

whether the alien
poses a risk to public safety or national security;

(B)

whether the alien
is likely to appear for immigration proceedings; and

(C)

any other relevant
factors.

(3)

Custody
redetermination

An alien subject to this section may at any time
after being served with the Secretary’s decision under subsections (a) or (d)
request a redetermination of that decision by an immigration judge. All
decisions by the Secretary to detain without bond or parole shall be subject to
redetermination by an immigration judge within 2 weeks from the time the alien
was served with the decision, unless waived by the alien. The alien may request
a further redetermination upon a showing of a material change in circumstances
since the last redetermination hearing.

(c)

Exception for
mandatory detention

Subsection (b) shall not apply to any alien
who is subject to mandatory detention under section 235(b)(1)(B)(iii)(IV),
236(c), or 236A or who has a final order of removal and has no proceedings
pending before the Executive Office for Immigration
Review.

;

(4)

in subsection (d),
as redesignated—

(A)

by striking
Attorney General and inserting Secretary;
and

(B)

by striking
or parole and inserting , parole, or decision to
release;;

(5)

in subsection (e),
as redesignated—

(A)

by striking
Attorney General and inserting Secretary each
place it appears; and

(B)

in paragraph (2),
by inserting or for humanitarian reasons, after such an
investigation,;

(6)

in subsection (f),
as redesignated—

(A)

in the matter
preceding paragraph (1), by striking Attorney General and
inserting Secretary;

(B)

in paragraph (1),
in subparagraphs (A) and (B), by striking Service and inserting
Department of Homeland Security; and

(C)

in paragraph (3),
by striking Service and inserting Secretary of Homeland
Security;

(7)

by inserting after
subsection (f), as redesignated, the following new subparagraph:

(g)

Administrative
Review

If an immigration judge’s custody decision has been stayed
by the action of an officer or employee of the Department of Homeland Security,
the stay shall expire in 30 days, unless the Board of Immigration Appeals
before that time, and upon motion, enters an order continuing the
stay.

;
and

(8)

in
subsection (h), as redesignated—

(A)

by striking
Attorney General’s and inserting Secretary of Homeland
Security’s; and

(B)

by striking
Attorney General and inserting Secretary.

174.

Legal
orientation program

(a)

In
general

The Attorney General, in consultation with the Secretary,
shall ensure that all detained aliens in immigration and asylum proceedings
receive legal orientation through a program administered and implemented by the
Executive Office for Immigration Review of the Department of Justice.

(b)

Content of
program

The legal orientation program developed pursuant to this
section shall be based on the Legal Orientation Program carried out by the
Executive Office for Immigration Review on the date of the enactment of this
Act.

(c)

Expansion of
legal assistance

The Secretary shall ensure the expansion through
the United States Citizenship and Immigration Service of public-private
partnerships that facilitate pro bono counseling and legal assistance for
asylum seekers awaiting a credible fear of persecution interview. The pro bono
counseling and legal assistance programs developed pursuant to this subsection
shall be based on the pilot program developed in Arlington, Virginia by the
United States Citizenship and Immigration Service.

175.

Conditions of
detention

(a)

In
general

The Secretary shall ensure that standards governing
conditions and procedures at detention facilities are fully implemented and
enforced, and that all detention facilities comply with the standards.

(b)

Procedures and
standards

The Secretary shall promulgate new standards, or modify
existing detention standards, to improve conditions in detention facilities.
The improvements shall address at a minimum the following policies and
procedures:

(1)

Fair and humane
treatment

Procedures to ensure that detainees are not subject to
degrading or inhumane treatment such as verbal or physical abuse or harassment,
sexual abuse or harassment, or arbitrary punishment.

(2)

Limitations on
shackling

Procedures limiting the use of shackling, handcuffing,
solitary confinement, and strip searches of detainees to situations where the
use of such techniques is necessitated by security interests or other
extraordinary circumstances.

(3)

Investigation of
grievances

Procedures for the prompt and effective investigation
of grievances raised by detainees, including review of grievances by officials
of the Department who do not work at the same detention facility where the
detainee filing the grievance is detained.

(4)

Access to
telephones

Procedures permitting detainees sufficient access to
telephones, and the ability to contact, free of charge, legal representatives,
the immigration courts, the Board of Immigration Appeals, and the Federal
courts through confidential toll-free numbers.

(5)

Location of
facilities

Location of detention facilities, to the extent
practicable, near sources of free or low-cost legal representation with
expertise in asylum or immigration law.

(6)

Procedures
governing transfers of detainees

Procedures governing the
transfer of a detainee that take into account—

(A)

the detainee's
access to legal representatives; and

(B)

the proximity of
the facility to the venue of the asylum or removal proceeding.

(7)

Quality of
medical care

Prompt and adequate medical care provided at no cost
to the detainee, including dental care, eye care, mental health care,
individual and group counseling, medical dietary needs, and other medically
necessary specialized care. Medical facilities in all detention facilities used
by the Department shall maintain current accreditation by the National
Commission on Correctional Health Care (NCCHC). Requirements that each medical
facility that is not accredited by the Joint Commission on the Accreditation of
Health Care Organizations (JCAHO) will seek to obtain such accreditation.
Maintenance of complete medical records for every detainee which shall be made
available upon request to a detainee, his legal representative, or other
authorized individuals.

(8)

Translation
capabilities

The employment of detention facility staff that, to
the extent practicable, are qualified in the languages represented in the
population of detainees at a detention facility, and the provision of
alternative translation services when necessary.

(9)

Recreational
programs and activities

Daily access to indoor and outdoor
recreational programs and activities.

(c)

Special
standards for noncriminal detainees

The Secretary shall
promulgate new standards, or modifications to existing standards, that—

(1)

recognize the
special characteristics of noncriminal, nonviolent detainees, and ensure that
procedures and conditions of detention are appropriate for a noncriminal
population; and

(2)

ensure that
noncriminal detainees are separated from inmates with criminal convictions,
pretrial inmates facing criminal prosecution, and those inmates exhibiting
violent behavior while in detention.

(d)

Special
standards for vulnerable populations

The Secretary shall
promulgate new standards, or modifications to existing standards, that—

(1)

recognize the
unique needs of asylum seekers, victims of torture and trafficking, families
with children, detainees who do not speak English, detainees with special
religious, cultural or spiritual considerations, and other vulnerable
populations; and

(2)

ensure that
procedures and conditions of detention are appropriate for the populations
listed in this subsection.

(e)

Training of
personnel

(1)

In
general

The Secretary shall ensure that personnel in detention
facilities are given specialized training to better understand and work with
the population of detainees held at the facilities where such personnel work.
The training should address the unique needs of—

(A)

asylum
seekers;

(B)

victims of torture
or other trauma; and

(C)

other vulnerable
populations.

(2)

Specialized
training

The training required by this subsection shall be
designed to better enable personnel to work with detainees from different
countries, and detainees who cannot speak English. The training shall emphasize
that many detainees have no criminal records and are being held for civil
violations.

176.

Office of
Detention Oversight

(a)

Establishment of
the Office

(1)

In
general

There shall be established within the Department an
Office of Detention Oversight (in this section referred to as the
Office).

(2)

Head of the
office

There shall be at the head of the Office an Administrator
who shall be appointed by, and shall report to, the Secretary.

(3)

Schedule

The
Office shall be established and the Administrator of the Office appointed not
later than 6 months after the date of enactment of this Act.

(b)

Responsibilities
of the Office

(1)

Inspections of
detention centers

The Administrator of the Office shall—

(A)

undertake frequent
and unannounced inspections of all detention facilities;

(B)

develop a procedure
for any detainee or the detainee’s representative to file a written complaint
directly with the Office; and

(C)

report to the
Secretary and to the Assistant Secretary of Homeland Security for United States
Immigration and Customs Enforcement all findings of a detention facility’s
noncompliance with detention standards.

(2)

Investigations

The
Administrator of the Office shall—

(A)

initiate
investigations, as appropriate, into allegations of systemic problems at
detention facilities or incidents that constitute serious violations of
detention standards;

(B)

report to the
Secretary and the Assistant Secretary of Homeland Security for United States
Immigration and Customs Enforcement the results of all investigations;
and

(C)

refer matters,
where appropriate, for further action to—

(i)

the
Department of Justice;

(ii)

the
Office of the Inspector General of the Department;

(iii)

the Office of
Civil Rights and Civil Liberties of the Department; or

(iv)

any
other relevant office of agency.

(3)

Report to
Congress

(A)

In
general

The Administrator of the Office shall submit to the
Secretary, the Committee on the Judiciary and the Committee on Homeland
Security and Governmental Affairs of the Senate, and the Committee on the
Judiciary and the Committee on Homeland Security of the House of
Representatives an annual report on the Administrator's findings on detention
conditions and the results of the investigations carried out by the
Administrator.

(B)

Contents of
report

Each report required by subparagraph (A) shall
include—

(i)

a
description of the actions to remedy findings of noncompliance or other
problems that are taken by the Secretary or the Assistant Secretary of Homeland
Security for United States Immigration and Customs Enforcement, and each
detention facility found to be in noncompliance; and

(ii)

information
regarding whether such actions were successful and resulted in compliance with
detention standards.

(4)

Review of
complaints by detainees

The Administrator of the Office shall
establish procedures to receive and review complaints of violations of the
detention standards promulgated by the Secretary. The procedures shall protect
the anonymity of the claimant, including detainees, employees, or others, from
retaliation.

(c)

Cooperation with
other offices and agencies

Whenever appropriate, the
Administrator of the Office shall cooperate and coordinate its activities
with—

(1)

the Office of the
Inspector General of the Department;

(2)

the Office of
Civil Rights and Civil Liberties of the Department;

(3)

the Privacy
Officer of the Department;

(4)

the Civil Rights
Division of the Department of Justice; or

(5)

any other relevant
office or agency.

177.

Secure
alternatives program

(a)

Establishment of
program

The Secretary shall establish a secure alternatives
program under which an alien who has been detained may be released under
enhanced supervision to prevent the alien from absconding and to ensure that
the alien makes appearances related to such detention.

(b)

Program
requirements

(1)

Nationwide
implementation

The Secretary shall facilitate the development of
the secure alternatives program on a nationwide basis, as a continuation of
existing pilot programs such as the Intensive Supervision Appearance Program
(ISAP) developed by the Department.

(2)

Utilization of
alternatives

The secure alternatives program shall utilize a
continuum of alternatives based on the alien's need for supervision, including
placement of the alien with an individual or organizational sponsor, or in a
supervised group home.

(3)

Aliens eligible
for secure alternatives program

(A)

In
general

Aliens who would otherwise be subject to detention based
on a consideration of the release criteria in section 236(b)(2), or who are
released pursuant to section 236(e)(2), shall be considered for the secure
alternatives program.

(B)

Design of
programs

Secure alternatives programs shall be designed to ensure
sufficient supervision of the population described in subparagraph (A).

(4)

Contracts

The
Secretary shall enter into contracts with qualified nongovernmental entities to
implement the secure alternatives program.

(5)

Other
considerations

In designing such program, the Secretary
shall—

(A)

consult with
relevant experts; and

(B)

consider programs
that have proven successful in the past, including the Appearance Assistance
Program developed by the Vera Institute and the Intensive Supervision
Appearance Program (ISAP) developed by the Department.

178.

Less
restrictive detention facilities

(a)

Construction

The
Secretary shall facilitate the construction or use of secure but less
restrictive detention facilities.

(b)

Criteria

In
developing detention facilities pursuant to this section, the Secretary
shall—

(1)

consider the
design, operation, and conditions of existing secure but less restrictive
detention facilities, such as the Department's detention facilities in Broward
County, Florida, and Berks County, Pennsylvania;

(2)

to the extent
practicable, construct or use detention facilities where—

(A)

movement within
and between indoor and outdoor areas of the facility is subject to minimal
restrictions;

(B)

detainees have
ready access to social, psychological, and medical services;

(C)

detainees with
special needs, including those who have experienced trauma or torture, have
ready access to services and treatment addressing their needs;

(D)

detainees have
ready access to meaningful programmatic and recreational activities;

(E)

detainees are
permitted contact visits with legal representatives, family members, and
others;

(F)

detainees have
access to private toilet and shower facilities;

(G)

prison-style
uniforms or jumpsuits are not required; and

(H)

special facilities
are provided to families with children.

(c)

Facilities for
families with children

For situations where release or secure
alternatives programs are not an option, the Secretary shall ensure that
special detention facilities are specifically designed to house parents with
their minor children, including ensuring that—

(1)

procedures and
conditions of detention are appropriate for families with minor children;
and

(2)

living and
sleeping quarters for parents and minor children are not physically
separated.

(d)

Placement in
nonpunitive facilities

Priority for placement in less restrictive
facilities shall be given to asylum seekers, families with minor children,
other vulnerable populations, and nonviolent criminal detainees.

(e)

Procedures and
standards

Where necessary, the Secretary shall promulgate new
standards, or modify existing detention standards, to promote the development
of less restrictive detention facilities.

179.

Authorization of
appropriations; effective date

(a)

Authorization of
appropriations

There are
authorized to be appropriated such sums as are necessary to carry out this
subtitle.

(b)

Effective
date

This subtitle and the
amendments made by this subtitle shall take effect on the date that is 6 months
after the date of enactment of this Act.

I

Other Border
Security Initiatives

181.

Combating human
smuggling

(a)

Requirement for
Plan

The Secretary shall develop and implement a plan to improve
coordination among United States Immigration and Customs Enforcement and United
States Customs and Border Protection and any other Federal, State, local, or
tribal authorities, as determined appropriate by the Secretary, to improve
coordination efforts to combat human smuggling.

(b)

Content

In
developing the plan required by subsection (a), the Secretary shall
consider—

(1)

the
interoperability of databases utilized to prevent human smuggling;

(2)

adequate and
effective personnel training;

(3)

methods and
programs to effectively target networks that engage in such smuggling;

(4)

effective
utilization of—

(A)

visas for victims
of trafficking and other crimes; and

(B)

investigatory
techniques, equipment, and procedures that prevent, detect, and prosecute
international money laundering and other operations that are utilized in
smuggling;

(5)

joint measures,
with the Secretary of State, to enhance intelligence sharing and cooperation
with foreign governments whose citizens are preyed on by human smugglers;
and

(6)

other measures
that the Secretary considers appropriate to combat human smuggling.

(c)

Report

Not
later than 1 year after implementing the plan described in subsection (a), the
Secretary shall submit to Congress a report on such plan, including any
recommendations for legislative action to improve efforts to combating human
smuggling.

(d)

Savings
Provision

Nothing in this section may be construed to provide
additional authority to any State or local entity to enforce Federal
immigration laws.

182.

Screening of
municipal solid waste

(a)

Definitions

In
this section:

(1)

Commercial motor
vehicle

The term commercial motor vehicle has the
meaning given the term in section 31101 of title 49, United States Code.

(2)

Commissioner

The
term Commissioner means the Commissioner of United States Customs
and Border Protection.

Not later than 90 days after the date of enactment of
this Act, the Commissioner shall submit to Congress a report that—

(1)

indicates whether
the methodologies and technologies used by United States Customs and Border
Protection to screen for and detect the presence of chemical, nuclear,
biological, and radiological weapons in municipal solid waste are as effective
as the methodologies and technologies used by United States Customs and Border
Protection to screen for such weapons in other items of commerce entering the
United States through commercial motor vehicle transport; and

(2)

if the report
indicates that the methodologies and technologies used to screen municipal
solid waste are less effective than the methodologies and technologies used to
screen other items of commerce, identifies the actions that United States
Customs and Border Protection will take to achieve the same level of
effectiveness in the screening of municipal solid waste, including actions
necessary to meet the need for additional screening technologies.

(c)

Impact on
Commercial Motor Vehicles

If the Commissioner fails to fully
implement an action identified under subsection (b)(2) before the earlier of
the date that is 180 days after the date on which the report under subsection
(b) is required to be submitted or the date that is 180 days after the date on
which the report is submitted, the Secretary shall deny entry into the United
States of any commercial motor vehicle carrying municipal solid waste until the
Secretary certifies to Congress that the methodologies and technologies used by
United States Customs and Border Protection to screen for and detect the
presence of chemical, nuclear, biological, and radiological weapons in
municipal solid waste are as effective as the methodologies and technologies
used by United States Customs and Border Protection to screen for such weapons
in other items of commerce entering into the United States through commercial
motor vehicle transport.

183.

Border security
on certain Federal land

(a)

Definitions

In
this section:

(1)

Protected
land

The term protected land means land under the
jurisdiction of the Secretary concerned.

(2)

Secretary
concerned

The term Secretary concerned means—

(A)

with respect to
land under the jurisdiction of the Secretary of Agriculture, the Secretary of
Agriculture; and

(B)

with respect to
land under the jurisdiction of the Secretary of the Interior, the Secretary of
the Interior.

(b)

Support for
Border Security Needs

(1)

In
general

To gain operational control over the international land
borders of the United States and to prevent the entry of terrorists, unlawful
aliens, narcotics, and other contraband into the United States, the Secretary,
in cooperation with the Secretary concerned, shall provide—

(A)

increased United
States Customs and Border Protection personnel to secure protected land along
the international land borders of the United States;

(B)

Federal land
resource training for United States Customs and Border Protection agents
dedicated to protected land; and

(C)

unmanned aerial
vehicles, aerial assets, remote video surveillance camera systems, and sensors
on protected land that is directly adjacent to the international land border of
the United States, with priority given to units of the National Park
System.

(2)

Coordination

In
providing training for United States Customs and Border Protection agents under
paragraph (1)(B), the Secretary shall coordinate with the Secretary concerned
to ensure that the training is appropriate to the mission of the National Park
Service, the United States Fish and Wildlife Service, the Forest Service, or
the relevant agency of the Department of the Interior or the Department of
Agriculture to minimize the adverse impact on natural and cultural resources
from border protection activities.

(c)

Inventory of
costs and activities

The Secretary concerned shall develop and
submit to the Secretary an inventory of costs incurred by the Secretary
concerned relating to illegal border activity, including the cost of equipment,
training, recurring maintenance, construction of facilities, restoration of
natural and cultural resources, recapitalization of facilities, and
operations.

(d)

Recommendations

The
Secretary shall—

(1)

develop joint
recommendations with the National Park Service, the United States Fish and
Wildlife Service, and the Forest Service for an appropriate cost recovery
mechanism relating to items identified in subsection (c); and

(2)

not later than
March 31, 2008, submit to the Committee on the Judiciary and the Committee on
Energy and Natural Resources of the Senate and the Committee on the Judiciary
and the Committee on Natural Resources of the House of Representatives the
recommendations developed under paragraph (1).

(e)

Border
protection strategy

The Secretary, the Secretary of the Interior,
and the Secretary of Agriculture shall jointly develop a border protection
strategy that supports the border security needs of the United States in the
manner that best protects—

(1)

units of the
National Park System;

(2)

National Forest
System land;

(3)

land under the
jurisdiction of the United States Fish and Wildlife Service; and

(4)

other relevant
land under the jurisdiction of the Secretary of the Interior or the Secretary
of Agriculture.

II

Interior
Enforcement

A

Reducing the number
of illegal aliens in the United States

201.

Incarceration
of criminal aliens

(a)

Institutional
removal program

(1)

Continuation

The
Secretary shall continue to operate the Institutional Removal Program (referred
to in this section as the Program) or shall develop and
implement another program to—

(A)

identify removable
criminal aliens in Federal and State correctional facilities;

(B)

ensure that such
aliens are not released into the community; and

(C)

remove such aliens
from the United States after the completion of their sentences, in accordance
with section 241 of the Immigration and Nationality Act (8 U.S.C. 1231), as
amended by section 231 of this Act.

(2)

Expansion

The
Secretary may extend the scope of the Program to all States.

(b)

Technology
usage

Technology, such as videoconferencing, shall be used to the
maximum extent practicable to make the Program available in remote locations.
Mobile access to Federal databases of aliens, such as the Automated Biometric
Fingerprint Identification System (IDENT), and live scan technology shall be
used to the maximum extent practicable to make these resources available to
State and local law enforcement agencies in remote locations.

(c)

Report to
Congress

Not later than 6 months after the date of enactment of
this Act, and annually thereafter, the Secretary shall submit to Congress a
report on the participation of States in the Program and in any other program
carried out pursuant to subsection (a).

(d)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary in each of the fiscal years 2008 through 2012 to carry out
this section.

202.

Encouraging
aliens to depart voluntarily

(a)

In
general

Section 240B (8
U.S.C. 1229c) is amended—

(1)

in subsection
(a)—

(A)

by amending
paragraph (1) to read as follows:

(1)

In
general

If an alien is not removable under paragraph (2)(A)(iii)
or (4) of section 237(a)—

(A)

the Secretary of
Homeland Security may permit the alien to voluntarily depart the United States
at the alien’s own expense under this subsection instead of being subject to
proceedings under section 240; or

(B)

the Attorney
General may permit the alien to voluntarily depart the United States at the
alien’s own expense under this subsection after the initiation of removal
proceedings under section 240 and before the conclusion of such proceedings
before an immigration
judge.

;

(B)

in paragraph (2),
by amending subparagraph (A) to read as follows:

(A)

In
general

(i)

Instead of
removal

Subject to subparagraph (B), permission to voluntarily
depart under paragraph (1)(A) shall not be valid for any period in excess of
120 days. The Secretary may require an alien permitted to voluntarily depart
under paragraph (1)(A) to post a voluntary departure bond, to be surrendered
upon proof that the alien has departed the United States within the time
specified.

;

(ii)

Before the
conclusion of removal proceedings

Permission to voluntarily
depart under paragraph (1)(B) shall not be valid for any period longer than 60
days, and may be granted only after a finding that the alien has the means to
depart the United States and intends to do so. An immigration judge may require
an alien to voluntarily depart under paragraph (1)(B) to post a voluntary
departure bond, in an amount necessary to ensure that the alien will depart, to
be surrendered upon proof that the alien has departed the United States within
the time specified. An immigration judge may waive the requirement to post a
voluntary departure bond in individual cases upon a finding that the alien has
presented compelling evidence that the posting of a bond will pose a serious
financial hardship and the alien has presented credible evidence that such a
bond is unnecessary to guarantee timely
departure.

;
and

(C)

by striking
paragraph (3);

(2)

by amending
subsection (c) to read as follows:

(c)

Conditions on
voluntary departure

(1)

Voluntary
departure agreement

Voluntary departure under this section may
only be granted as part of an affirmative agreement by the alien.

(2)

Concessions by
the Secretary

In connection with the alien’s agreement to depart
voluntarily under paragraph (1)(A), the Secretary of Homeland Security may
agree to a reduction in the period of inadmissibility under subparagraph (A) or
(B)(i) of section 212(a)(9).

(3)

Advisals

Agreements
relating to voluntary departure granted during removal proceedings under
section 240, or at the conclusion of such proceedings, shall be presented on
the record before the immigration judge. The immigration judge shall advise the
alien of the consequences of a voluntary departure agreement before accepting
such agreement.

(4)

Failure to
comply with agreement

If an alien agrees to voluntary departure
under this section and fails to depart the United States within the time
allowed for voluntary departure or fails to comply with any other terms of the
agreement (including failure to timely post any required bond), the alien
is—

(A)

ineligible for the
benefits of the agreement;

(B)

subject to the
penalties described in subsection (d); and

(C)

subject to an
alternate order of removal if voluntary departure was granted under subsection
(a)(1)(B) or (b).

(5)

Voluntary
departure period not affected

Except as expressly agreed to by
the Secretary in writing in the exercise of the Secretary’s discretion before
the expiration of the period allowed for voluntary departure, no motion,
appeal, application, petition, or petition for review shall affect, reinstate,
enjoin, delay, stay, or toll the alien’s obligation to depart from the United
States during the period agreed to by the alien and the
Secretary.

;
and

(3)

by amending
subsection (d) to read as follows:

(d)

Penalties for
failure To depart

If an alien is permitted to voluntarily depart
under this section and fails to voluntarily depart from the United States
within the time period specified or otherwise violates the terms of a voluntary
departure agreement, the alien will be subject to the following
penalties:

(1)

Civil
penalty

The alien shall be liable for a civil penalty of $3,000.
The order allowing voluntary departure shall specify the amount of the penalty,
which shall be acknowledged by the alien on the record. If the Secretary
thereafter establishes that the alien failed to depart voluntarily within the
time allowed, no further procedure will be necessary to establish the amount of
the penalty, and the Secretary may collect the civil penalty at any time
thereafter and by whatever means provided by law. An alien will be ineligible
for any benefits under this chapter until this civil penalty is paid.

(2)

Ineligibility
for relief

The alien shall be ineligible during the time the
alien remains in the United States and for a period of 10 years after the
alien’s departure for any further relief under this section and sections 240A,
245, 248, and 249. The order permitting the alien to depart voluntarily shall
inform the alien of the penalties under this
subsection.

;
and

(4)

by
amending subsection (e) to read as follows:

(e)

Eligibility

(1)

Prior grant of
voluntary departure

An alien shall not be permitted to
voluntarily depart under this section if the Secretary of Homeland Security or
the Attorney General previously permitted the alien to depart voluntarily under
this section on or after the date of the enactment of the
STRIVE Act of 2007.

(2)

Rulemaking

The
Secretary may promulgate regulations to limit eligibility or impose additional
conditions for voluntary departure under subsection (a)(1)(A) for any class of
aliens.

.

(b)

Effective
date

The amendments made by this section shall apply with respect
to all orders granting voluntary departure under section 240B of the
Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that
is 180 days after the date of enactment of this Act.

203.

Deterring
aliens ordered removed from remaining in the United States
unlawfully

Section
212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amended—

(1)

in clause (i), by
striking seeks admission within 5 years of the date of such removal (or
within 20 years and inserting seeks admission not later than 5
years after the date of the alien’s removal (or not later than 20 years after
the alien’s removal; and

(2)

in clause (ii), by
striking seeks admission within 10 years of the date of such alien’s
departure or removal (or within 20 years of and inserting seeks
admission not later than 10 years after the date of the alien’s departure or
removal (or not later than 20 years after.

204.

Prohibition of
the sale of firearms to, or the possession of firearms by certain
aliens

Section 922 of title
18, United States Code, is amended—

(1)

in subsection
(d)(5)—

(A)

in subparagraph
(A), by striking or at the end;

(B)

in subparagraph
(B), by striking (y)(2) and all that follows and inserting
(y), is in a nonimmigrant classification; or; and

(C)

by adding at the
end the following:

(C)

has been paroled
into the United States under section 212(d)(5) of the
Immigration and Nationality Act (8
U.S.C.
1182(d)(5));

;

(2)

in subsection
(g)(5)—

(A)

in subparagraph
(A), by striking or at the end;

(B)

in subparagraph
(B), by striking (y)(2) and all that follows and inserting
(y), is in a nonimmigrant classification; or; and

(C)

by adding at the
end the following:

(C)

has been paroled
into the United States under section 212(d)(5) of the
Immigration and Nationality Act (8
U.S.C. 1182(d)(5));

;
and

(3)

in subsection
(y)—

(A)

in the heading, by
striking Admitted Under
Nonimmigrant Visas and inserting
in a Nonimmigrant
Classification;

(B)

in paragraph (1),
by amending subparagraph (B) to read as follows:

(B)

the term
nonimmigrant classification includes all classes of nonimmigrant
aliens described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)), or otherwise described in the immigration laws (as defined in
section 101(a)(17) of such
Act).

;

(C)

in paragraph (2),
by striking has been lawfully admitted to the United States under a
nonimmigrant visa and inserting is in a nonimmigrant
classification; and

(D)

in paragraph
(3)(A), by striking Any individual who has been admitted to the United
States under a nonimmigrant visa may receive a waiver from the requirements of
subsection (g)(5) and inserting Any alien in a nonimmigrant
classification may receive a waiver from the requirements of subsection
(g)(5)(B).

Section 3291 of title 18, United States Code, is amended
to read as follows:

3291.

Immigration,
naturalization, and peonage offenses

No person shall be prosecuted, tried, or
punished for a violation of any section of chapters 69 (relating to nationality
and citizenship offenses), 75 (relating to passport, visa, and immigration
offenses), or 77 (relating to peonage, slavery, and trafficking in persons),
for an attempt or conspiracy to violate any such section, for a violation of
any criminal provision under section 243, 266, 274, 275, 276, 277, or 278 of
the Immigration and Nationality Act (8
U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), or for an attempt or
conspiracy to violate any such section, unless the indictment is returned or
the information filed not later than 10 years after the commission of the
offense.

.

(b)

Clerical
amendment

The table of sections for chapter 213 of title 18,
United States Code, is amended by striking the item relating to section 3291
and inserting the following:

3291. Immigration, naturalization, and
peonage
offenses.

.

206.

Expedited
removal

(a)

In
general

Section 238 (8 U.S.C. 1228) is amended—

(1)

by striking the
section heading and inserting Expedited removal of criminal
aliens;

(2)

in subsection (a),
by striking the subsection heading and inserting: Expedited removal from correctional
facilities.—;

(3)

in subsection (b),
by striking the subsection heading and inserting: Removal of Criminal
Aliens.—;

(4)

in subsection (b),
by striking paragraphs (1) and (2) and inserting the following:

(1)

In
general

The Secretary of Homeland Security may, in the case of an
alien described in paragraph (2), determine the deportability of such alien and
issue an order of removal pursuant to the procedures set forth in this
subsection or section 240.

(2)

Aliens
described

An alien is described in this paragraph if the
alien—

(A)

has not been
lawfully admitted to the United States for permanent residence; and

(B)

was convicted of
any criminal offense establishing deportability under subparagraph (A)(iii) or
(D)(i) of section 237(a)(2).

;
and

(5)

by redesignating
the subsection (c) that relates to judicial removal as subsection (d).

(b)

Effective
date

The amendments made by this section shall take effect on the
date of enactment of this Act and shall apply to all aliens apprehended or
convicted on or after such date.

207.

Field agent
allocation

(a)

In
general

Section 103(f) (8 U.S.C. 1103(f)) is amended to read as
follows:

(f)

Minimum number of
agents in States

(1)

In
general

The Secretary of Homeland Security shall allocate to each
State—

(A)

not fewer than 40
full-time active duty agents of the Bureau of Immigration and Customs
Enforcement to—

(i)

investigate
immigration violations; and

(ii)

ensure the
departure of all removable aliens; and

(B)

not fewer than 15
full-time active duty agents of United States Citizenship and Immigration
Services to carry out immigration and naturalization adjudication
functions.

(2)

Waiver

The
Secretary may waive the application of paragraph (1) for any State with a
population of less than 2,000,000, as most recently reported by the Bureau of
the
Census.

.

(b)

Effective
date

The amendment made by subsection (a) shall take effect on
the date that is 90 days after the date of the enactment of this Act.

(c)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary to carry out this section.

Section 105 (8 U.S.C. 1105) is
amended by adding at the end the following:

(e)

Interagency task
force

(1)

In
general

The Secretary of Homeland Security shall establish an
interagency task force to resolve cases in which an application or petition for
an immigration benefit conferred under this Act has been delayed due to an
outstanding background check investigation for more than 2 years after the date
on which such application or petition was initially filed.

(2)

Membership

The
interagency task force established under paragraph (1) shall include
representatives from Federal agencies with immigration, law enforcement, or
national security responsibilities under this
Act.

.

(b)

Authorization of
appropriations

There are authorized to be appropriated to the
Director of the Federal Bureau of Investigation such sums as are necessary for
each fiscal year, 2008 through 2012 for enhancements to existing systems for
conducting background and security checks necessary to support immigration
security and orderly processing of applications.

(c)

Report on
background and security checks

(1)

In
general

Not later than 180 days after the date of the enactment
of this Act, the Director of the Federal Bureau of Investigation shall submit
to the Committee on the Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives a report on the background and
security checks conducted by the Federal Bureau of Investigation on behalf of
United States Citizenship and Immigration Services.

(2)

Content

The
report required under paragraph (1) shall include—

(A)

a description of
the background and security check program;

(B)

a statistical
breakdown of the background and security check delays associated with different
types of immigration applications;

(C)

a statistical
breakdown of the background and security check delays by applicant country of
origin; and

(D)

the steps that the
Director of the Federal Bureau of Investigations is taking to expedite
background and security checks that have been pending for more than 180
days.

(d)

Ensuring
accountability in background check determinations

(1)

In
general

Chapter 4 of title III (8 U.S.C. 1501 et seq.) is amended
by adding at the end the following:

362.

Construction

(a)

In
general

Nothing in this Act (other than section 241(b)(3)) or in
any other provision of law (other than the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December
10, 1994, subject to any reservations, understandings, declarations, and
provisos contained in the resolution of ratification of the Convention, as
implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act
of 1998 (Public Law 105–277; 8 U.S.C. 1231 note)) may be construed to require
the Secretary of Homeland Security or the Attorney General to grant any
application for asylum, adjustment of status, or naturalization, or grant any
relief from removal under the immigration laws to—

(1)

any alien with
respect to whom a national security, criminal, or other investigation or case
is open or pending (including the issuance of an arrest warrant, detainer, or
indictment) that is material to the alien’s eligibility for the status or
benefit sought; or

(2)

any alien for whom
all law enforcement and other background checks have not been conducted and
resolved or the information related to such background checks have not provided
to or assessed by the reviewing official.

(b)

Timeframes

Notwithstanding
subsection (a), the Secretary of Homeland Security may not delay adjudication
or document issuance beyond 180 days due to an outstanding background or
security check unless the Secretary certifies that such background and security
check may establish that the alien poses a risk to national security or public
safety. The decision to delay shall be reviewed every 180 days, and such
decision may not be delegated below the level of Assistant Secretary. An alien
has no right to review or appeal the Secretary's decision to delay adjudication
or issuance of documentation under this section, but remains entitled to
interim work
authorization.

.

(2)

Rulemaking

The
Secretary of Homeland Security shall promulgate regulations that describe the
conditions under which interim work authorization under paragraph (1) shall be
issued.

(3)

Annual report to
Congress

The Secretary of Homeland Security, the Attorney
General, the Secretary of State, and the Secretary of Labor shall submit an
annual report to Congress that includes—

(A)

the number of cases
in which paragraph (1) or (2) of subsection (a) is invoked during the reporting
period;

(B)

the total number
of pending cases in each category at the end of the reporting period;

(C)

the resolution of
cases finally decided during the reporting period; and

(D)

statistics on
interim employment authorizations issued under this section.

(e)

Clerical
amendment

The table of contents is amended by inserting after the
item relating to section 361 the following:

Sec. 362.
Construction.

.

(f)

Enhanced
transparency of clearance process

(1)

Establishment

The
Secretary and the Attorney General shall each establish an Office of the Public
Advocate for Immigration Clearances within the Department and the Department of
Justice, respectively. Each Office shall be headed by a Public Advocate.

(2)

Duties

Each
Public Advocate shall—

(A)

serve as a public
liaison for their respective Department for identifying and resolving delays in
immigration processing caused by background check investigations; and

(B)

serve on the
Interagency Task Force established under subsection (e) of section 105 of the
Immigration and Nationality Act (8 U.S.C. 1105), as added by subsection
(a).

Reimbursement of
States for preconviction costs relating to the incarceration of illegal
aliens

Section 241(i)(3)(A) (8 U.S.C. 1231(i)(3)(A)) is amended
by inserting charged with or before
convicted.

(c)

Reimbursement of
States for indirect costs relating to the incarceration of illegal
aliens

Section 501 of the Immigration Reform and Control Act of
1986 (8 U.S.C. 1365) is amended—

(1)

by amending
subsection (a) to read as follows:

(a)

Reimbursement of
States

Subject to the amounts provided in advance in
appropriation Acts, the Secretary of Homeland Security shall reimburse a State
for—

(1)

the costs incurred
by the State for the imprisonment of any illegal alien or Cuban national who is
convicted of a felony by such State; and

(2)

the indirect costs
related to the imprisonment described in paragraph
(1).

;
and

(2)

by amending
subsections (c) through (e) to read as follows:

(c)

Manner of
allotment of reimbursements

Reimbursements under this section
shall be allotted in a manner that gives special consideration for any State
that—

(1)

shares a border
with Mexico or Canada; or

(2)

includes within
the State an area in which a large number of undocumented aliens reside
relative to the general population of that area.

(d)

Definitions

In
this section:

(1)

Indirect
costs

The term indirect costs includes—

(A)

court costs,
county attorney costs, detention costs, and criminal proceedings expenditures
that do not involve going to trial;

(B)

indigent defense
costs; and

(C)

unsupervised
probation costs.

(2)

State

The
term State has the meaning given such term in section 101(a)(36)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).

(e)

Authorization of
appropriations

There are authorized to be appropriated
$200,000,000 for each of the fiscal years 2008 through 2012 to carry out
subsection
(a)(2).

.

210.

Transportation
and processing of illegal aliens apprehended by State and local law enforcement
officers

(a)

In
general

The Secretary shall provide sufficient transportation and
officers to take illegal aliens apprehended by State and local law enforcement
officers into custody for processing at a detention facility operated by the
Department.

(b)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary for each of fiscal years 2008 through 2012 to carry out
this section.

211.

Reducing
illegal immigration and alien smuggling on tribal lands

(a)

Grants
authorized

The Secretary may award grants to Indian tribes with
lands adjacent to an international border of the United States that have been
adversely affected by illegal immigration.

(b)

Use of
funds

Grants awarded under subsection (a) may be used for—

(1)

law enforcement
activities;

(2)

health care
services;

(3)

environmental
restoration; and

(4)

the preservation
of cultural resources.

(c)

Report

Not
later than 180 days after the date of the enactment of this Act, the Secretary
shall submit a report to the Committee on the Judiciary of the Senate and the
Committee on the Judiciary of the House of Representatives that—

(1)

describes the
level of access of Border Patrol agents on tribal lands;

(2)

describes the
extent to which enforcement of immigration laws may be improved by enhanced
access to tribal lands;

(3)

contains a
strategy for improving such access through cooperation with tribal authorities;
and

(4)

identifies grants
provided by the Department for Indian tribes, either directly or through State
or local grants, relating to border security expenses.

(d)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary for each of the fiscal years 2008 through 2012 to carry out
this section.

212.

Mandatory
address reporting requirements

(a)

Clarifying
address reporting requirements

Section 265 (8 U.S.C. 1305) is
amended—

(1)

in subsection
(a)—

(A)

by striking
notify the Attorney General in writing and inserting
submit written or electronic notification to the Secretary of Homeland
Security, in a manner approved by the Secretary,;

(B)

by striking
the Attorney General may require and inserting the
Secretary may require; and

(C)

by adding at the
end the following: If the alien is involved in proceedings before an
immigration judge or in an administrative appeal of such proceedings, the alien
shall submit to the Attorney General the alien’s current address and a
telephone number, if any, at which the alien may be contacted.;

(2)

in subsection (b),
by striking Attorney General each place such term appears and
inserting Secretary of Homeland Security;

(3)

in subsection (c),
by striking given to such parent and inserting given by
such parent; and

(4)

by adding at the
end the following:

(d)

Address To be
provided

(1)

In
general

Except as otherwise provided by the Secretary under
paragraph (2), an address provided by an alien under this section shall be the
alien’s current residential mailing address, and shall not be a post office box
or other nonresidential mailing address or the address of an attorney,
representative, labor organization, or employer.

(2)

Specific
requirements

The Secretary may provide specific requirements with
respect to—

(A)

designated classes
of aliens and special circumstances, including aliens who are employed at a
remote location; and

(B)

the reporting of
address information by aliens who are incarcerated in a Federal, State, or
local correctional facility.

(3)

Detention

An
alien who is being detained by the Secretary under this Act is not required to
report the alien’s current address under this section during the time the alien
remains in detention, but shall be required to notify the Secretary of the
alien’s address under this section at the time of the alien’s release from
detention.

(e)

Use of most
recent address provided by the alien

(1)

In
general

Notwithstanding any other provision of law, the Secretary
may provide for the appropriate coordination and cross referencing of address
information provided by an alien under this section with other information
relating to the alien’s address under other Federal programs, including—

(A)

any information
pertaining to the alien, which is submitted in any application, petition, or
motion filed under this Act with the Secretary of Homeland Security, the
Secretary of State, or the Secretary of Labor;

(B)

any information
available to the Attorney General with respect to an alien in a proceeding
before an immigration judge or an administrative appeal or judicial review of
such proceeding;

(C)

any information
collected with respect to nonimmigrant foreign students or exchange program
participants under section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372); and

(D)

any information
collected from State or local correctional agencies pursuant to the State
Criminal Alien Assistance Program.

(2)

Reliance

The
Secretary may rely on the most recent address provided by the alien under this
section or section 264 to send to the alien any notice, form, document, or
other matter pertaining to Federal immigration laws, including service of a
notice to appear. The Attorney General and the Secretary may rely on the most
recent address provided by the alien under section 239(a)(1)(F) to contact the
alien about pending removal proceedings.

(3)

Obligation

The
alien’s provision of an address for any other purpose under the Federal
immigration laws does not excuse the alien’s obligation to submit timely notice
of the alien’s address to the Secretary under this section (or to the Attorney
General under section 239(a)(1)(F) with respect to an alien in a proceeding
before an immigration judge or an administrative appeal of such
proceeding).

(f)

Requirement for
database

The Secretary of Homeland Security shall establish an
electronic database to timely record and preserve addresses provided under this
section.

.

(b)

Conforming
changes with respect to registration requirements

Chapter 7 of
title II (8 U.S.C. 1301 et seq.) is amended—

(1)

in section 262(c),
by striking Attorney General and inserting Secretary of
Homeland Security;

(2)

in section 263(a),
by striking Attorney General and inserting Secretary of
Homeland Security; and

(3)

in section
264—

(A)

in subsections
(a), (b), (c), and (d), by striking Attorney General each place
it appears and inserting Secretary of Homeland Security;
and

(B)

in subsection
(f)—

(i)

by
striking Attorney General is authorized and inserting
Secretary of Homeland Security and Attorney General are
authorized; and

(ii)

by
striking Attorney General or the Service and inserting
Secretary or the Attorney General.

(c)

Effect on
eligibility for immigration benefits

If an alien fails to comply
with section 262, 263, or 265 of the Immigration and Nationality Act (8 U.S.C.
1302, 1303, and 1305) or section 264.1 of title 8, Code of Federal Regulations,
or removal orders or voluntary departure agreements based on any such section
for acts committed prior to the enactment of this Act such failure shall not
affect the eligibility of the alien to apply for a benefit under the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(d)

Technical
amendments

Section 266 (8 U.S.C. 1306 ) is amended by striking
Attorney General each place it appears and inserting
Secretary of Homeland Security.

(e)

Effective
dates

(1)

In
general

Except as provided in paragraph (2), the amendments made
by this section shall take effect on the date of the enactment of this
Act.

(2)

Exceptions

The amendments made by paragraphs (1)(A),
(1)(B), (2), and (3) of subsection (a) shall take effect as if enacted on March
1, 2003.

213.

State and local
Enforcement of Federal Immigration laws

(a)

In
general

Section 287(g) (8 U.S.C. 1357(g)) is amended—

(1)

in paragraph (2),
by adding at the end If such training is provided by a State or
political subdivision of a State to an officer or employee of such State or
political subdivision of a State, the cost of such training (including
applicable overtime costs) shall be reimbursed by the Secretary of Homeland
Security.; and

(2)

in paragraph (4),
by adding at the end The cost of any equipment required to be purchased
under such written agreement and necessary to perform the functions under this
subsection shall be reimbursed by the Secretary of Homeland
Security..

(b)

Authorization of
appropriations

There are authorized to be appropriated to the
Secretary such sums as may be necessary to carry out this section and the
amendments made by this section.

214.

Increased
criminal penalties related to drunk driving

(a)

Inadmissibility

Section
212(a)(2) (8 U.S.C. 1182(a)(2)) is amended—

(1)

by redesignating
subparagraph (F) as subparagraph (J); and

(2)

by
inserting after subparagraph (E) the following:

(F)

Drunk
drivers

Any alien who has been convicted of 3 offenses for
driving under the influence and at least 1 of the offenses is a felony under
Federal or State law, for which the alien was sentenced to more than 1 year
imprisonment, is
inadmissible.

.

(b)

Deportability

Section
237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by adding at the end the
following:

(F)

Drunk
drivers

Unless the Secretary of Homeland Security or the Attorney
General waives the application of this subparagraph, any alien who has been
convicted of 3 offenses for driving under the influence and at least 1 of the
offenses is a felony under Federal or State law, for which the alien was
sentenced to more than 1 year imprisonment, is
deportable.

.

(c)

Judicial
advisal

(1)

In
general

A court shall not accept a guilty plea for driving under
the influence unless the court has administered to the defendant, on the
record, the following adivsal:

If you are
not a citizen of the United States, you are advised that conviction for driving
under the influence, including conviction by entry of any plea, even if the
conviction is later expunged, may result in deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the
laws of the United
States.

.

(2)

Failure to
advise

Upon request, the court shall allow the defendant a
reasonable amount of additional time to consider the appropriateness of the
plea in light of the advisement set out in paragraph (1). If the court fails to
advise the defendant in accordance with paragraph (1) and the defendant shows
that conviction of the offense to which the defendant pleaded guilty may result
in the defendant’s deportation, exclusion from the United States, or denial of
naturalization pursuant to the laws of the United States, the court, upon a
motion by the defendant, shall vacate the judgment and permit the defendant to
withdraw the plea and enter a plea of not guilty. If the record does not show
that the court provided the required advisement, it shall be presumed that the
defendant did not receive the advisement. The defendant shall not be required
to disclose his or her immigration status at any time.

(d)

Conforming
amendment

Section 212(h) (8 U.S.C. 1182(h)) is amended—

(1)

in the subsection
heading, by striking subsection (a)(2)(A)(i)(I), (II), (B),
(D),and (E) and inserting
certain provisions in
subsection (a)(2);
and

(2)

in the matter
preceding paragraph (1), by striking and (E) and inserting
(E), and (F).

(e)

Effective
date

The amendments made by this section shall take effect on the
date of the enactment of this Act and shall apply to convictions entered on or
after such date.

215.

Law enforcement
authority of States and political subdivisions and transfer to Federal
custody

Title II (8 U.S.C.
1151 et seq.) is amended by adding after section 240C the following:

240D.

Law
enforcement authority of States and political subdivisions and transfer of
aliens to Federal custody

(a)

Authority

Notwithstanding
any other provision of law, law enforcement personnel of a State, or a
political subdivision of a State, have the inherent authority of a sovereign
entity to investigate, apprehend, arrest, detain, or transfer to Federal
custody (including the transportation across State lines to detention centers)
an alien for the purpose of assisting in the enforcement of the criminal
provisions of the immigration laws of the United States in the normal course of
carrying out the law enforcement duties of such personnel. This State authority
has never been displaced or preempted by a Federal law.

(b)

Transfer

If
the head of a law enforcement entity of a State (or a political subdivision of
the State), exercising authority with respect to the detention of an alien
convicted of a criminal offense, submits a request to the Secretary of Homeland
Security, the Secretary shall—

(1)

determine the
immigration status of the offender; and

(2)

report to the
requesting agency whether the Department of Homeland Security intends to take
custody of the offender for violations of Federal immigration laws, with an
approximate timeframe for the transfer of custody.

(c)

Reimbursement

The
Secretary of Homeland Security is authorized to use funds appropriated pursuant
to the authorization of appropriations in section 241(i)(5) to reimburse a
State, or a political subdivision of a State for activities described in
subparagraph (a) or (b).

(d)

Requirement for
appropriate security

The Secretary of Homeland Security shall
ensure that—

(1)

aliens
incarcerated in a Federal facility pursuant to this section are held in
facilities which provide an appropriate level of security; and

(2)

if practicable,
aliens detained solely for civil violations of Federal immigration law are
separated within a facility or facilities.

(e)

Requirement for
schedule

In carrying out this section, the Secretary of Homeland
Security shall establish a regular circuit and schedule for the prompt
transportation of apprehended aliens from the custody of those States, and
political subdivisions of States, which routinely submit requests described in
subsection (b), into Federal custody.

(f)

Authority for
contracts

(1)

In
general

The Secretary of Homeland Security may enter into
contracts or cooperative agreements with appropriate State and local law
enforcement and detention agencies to implement this section.

(2)

Determination by
Secretary

Before entering into a contract or cooperative
agreement with a State or political subdivision of a State under paragraph (1),
the Secretary shall determine whether the State, or if appropriate, the
political subdivision in which the agencies are located, has in place any
formal or informal policy that violates section 642 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373). The Secretary
shall not allocate any of the funds made available under this section to any
State or political subdivision that has in place a policy that violates such
section.

(g)

Construction

Nothing
in this section shall be construed to require law enforcement personnel of a
State or a political subdivision to assist in the enforcement of the
immigration laws of the United States.

(h)

Authorization of
appropriations

There are authorized to be appropriated such sums
as may be necessary to carry out this
section.

.

216.

Laundering of
monetary instruments

Section
1956(c)(7)(D) of title 18, United States Code, is amended—

(1)

by
inserting section 1590 (relating to trafficking with respect to peonage,
slavery, involuntary servitude, or forced labor), after section
1363 (relating to destruction of property within the special maritime and
territorial jurisdiction),; and

(2)

by inserting
section 274(a) of the Immigration and
Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and
harboring certain aliens), after section 590 of the
Tariff Act of 1930 (19 U.S.C. 1590)
(relating to aviation smuggling),.

217.

Increase of
Federal detention space and the utilization of facilities identified for
closures as a result of the Defense Base Closure Realignment Act of
1990

(a)

Construction or
acquisition of detention facilities

(1)

In
general

Subject to the availability of appropriations, the
Secretary shall construct or acquire, in addition to existing facilities for
the detention of aliens, at least 20 detention facilities in the United States
that have the capacity to detain a combined total of not less than 20,000
individuals at any time for aliens detained pending removal or a decision on
removal of such aliens from the United States.

(2)

Requirement to
construct or acquire

Subject to the availability of
appropriations, the Secretary shall construct or acquire additional detention
facilities in the United States to accommodate the detention beds required by
section 5204(a) of the Intelligence Reform and Terrorism Protection Act of 2004
(Public Law 108–458; 118 Stat. 3734).

(3)

Use of alternate
detention facilities

Subject to the availability of
appropriations, the Secretary shall fully utilize all possible options to cost
effectively increase available detention capacities, and shall utilize
detention facilities that are owned and operated by the Federal Government if
the use of such facilities is cost effective.

(4)

Use of
installations under base closure laws

In acquiring additional
detention facilities under this subsection, the Secretary shall consider the
transfer of appropriate portions of military installations approved for closure
or realignment under the Defense Base Closure and Realignment Act of 1990 (part
A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note) for use in
accordance with this subsection.

(5)

Determination of
location

The location of any detention facility constructed or
acquired in accordance with this subsection shall be determined, with the
concurrence of the Secretary, by the senior officer responsible for Detention
and Removal Operations in the Department. The detention facilities shall be
located so as to enable the officers and employees of the Department to
increase to the maximum extent practicable the annual rate and level of
removals of illegal aliens from the United States.

(b)

Annual report to
Congress

Not later than 1 year after the date of the enactment of
this Act, and annually thereafter, in consultation with the heads of other
appropriate Federal agencies, the Secretary shall submit to Congress an
assessment of the additional detention facilities and bed space needed to
detain unlawful aliens apprehended at the United States ports of entry or along
the international land borders of the United States.

There are authorized to be appropriated such sums
as may be necessary to carry out this section.

218.

Determination
of immigration status of individuals charged with Federal offenses

(a)

Responsibility
of United States Attorneys

Beginning not later than 2 years after
the date of enactment of this Act, the office of the United States Attorney
that is prosecuting a criminal case in a Federal court—

(1)

shall determine,
not later than 30 days after filing the initial pleadings in the case, whether
each defendant in the case is lawfully present in the United States (subject to
subsequent legal proceedings to determine otherwise);

(2)(A)

if the defendant is
determined to be an alien lawfully present in the United States, shall notify
the court in writing of the determination and the current status of the alien
under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.); and

(B)

if the defendant is determined not to
be lawfully present in the United States, shall notify the court in writing of
the determination, the defendant’s alien status, and, to the extent possible,
the country of origin or legal residence of the defendant;

(3)

ensure that the
information described in paragraph (2) is included in the case file and the
criminal records system of the office of the United States attorney; and

(4)

provide notice to
the alien and the counsel for the alien of any such determination and any such
submission to the court.

(b)

Guidelines

A
determination made under subsection (a)(1) shall be made in accordance with
guidelines of the Executive Office for Immigration Review of the Department of
Justice.

(c)

Responsibilities
of Federal courts

(1)

Modifications of
records and case managements systems

Not later than 2 years after
the date of enactment of this Act, all Federal courts that hear criminal cases,
or appeals of criminal cases, shall modify their criminal records and case
management systems, in accordance with guidelines which the Director of the
Administrative Office of the United States Courts shall establish, so as to
enable accurate reporting of information described in subsection (a)(2).

(2)

Data
entries

Beginning not later than 2 years after the date of
enactment of this Act, each Federal court described in paragraph (1) shall
enter into its electronic records the information contained in each
notification to the court under subsection (a)(2).

(d)

Construction

Nothing
in this section may be construed to provide a basis for admitting evidence to a
jury or releasing information to the public regarding an alien’s immigration
status.

(e)

Annual report to
Congress

The Director of the Administrative Office of the United
States Courts shall include, in the annual report filed with Congress under
section 604 of title 28, United States Code—

(1)

statistical
information on criminal trials of aliens in the courts and criminal convictions
of aliens in the lower courts and upheld on appeal, including the type of crime
in each case and including information on the legal status of the aliens;
and

(2)

recommendations on
whether additional court resources are needed to accommodate the volume of
criminal cases brought against aliens in the Federal courts.

(f)

Authorization of
appropriations

(1)

In
general

There are authorized to be appropriated for each of
fiscal years 2008 through 2012, such sums as may be necessary to carry out this
section.

(2)

Availability of
funds

Funds appropriated pursuant to the authorization of
appropriations in this subsection in any fiscal year shall remain available
until expended.

219.

Expansion of
the Justice Prisoner and Alien Transfer System

Not later than 60 days after the date of
enactment of this Act, the Attorney General shall issue a directive to expand
the Justice Prisoner and Alien Transfer System so that such System provides
additional services with respect to aliens who are illegally present in the
United States. Such expansion should include—

(1)

increasing the
daily operations of such System with buses and air hubs in 3 geographic
regions;

(2)

allocating a set
number of seats for such aliens for each metropolitan area;

(3)

allowing
metropolitan areas to trade or give some of the seats allocated to the area
under such System for such aliens to other areas in their region based on the
transportation needs of each area; and

(4)

requiring an
annual report that analyzes the number of seats that each metropolitan area is
allocated under such System for such aliens and modifies such allocation if
necessary.

220.

Cancellation of
visas

Section 222(g) (8 U.S.C.
1202(g)) is amended—

(1)

in paragraph
(1)—

(A)

by striking
Attorney General and inserting Secretary of Homeland
Security; and

(B)

by inserting
and any other nonimmigrant visa issued by the United States that is in
the possession of the alien after such visa; and

(2)

in paragraph
(2)(A), by striking (other than the visa described in paragraph (1))
issued in a consular office located in the country of the alien’s
nationality and inserting (other than a visa described in
paragraph (1)) issued in a consular office located in the country of the
alien’s nationality or foreign residence.

B

Passport and visa
security

221.

Reform of
passport fraud offenses

(a)

Trafficking in
passports

Section 1541 of
title 18, United States Code, is amended to read as follows:

1541.

Trafficking in
passports

(a)

Multiple
passports

Any person who, during any period of 3 years or less,
knowingly—

(1)

and without lawful
authority produces, issues, or transfers 10 or more passports;

(2)

forges,
counterfeits, alters, or falsely makes 10 or more passports;

(3)

secures,
possesses, uses, receives, buys, sells, or distributes 10 or more passports,
knowing the passports to be forged, counterfeited, altered, falsely made,
stolen, procured by fraud, or produced or issued without lawful authority;
or

(4)

completes, mails,
prepares, presents, signs, or submits 10 or more applications for a United
States passport, knowing the applications to contain any false statement or
representation,

shall be
fined under this title, imprisoned not more than 20 years, or both.(b)

Passport
materials

Any person who knowingly and without lawful authority
produces, buys, sells, possesses, or uses any official material (or counterfeit
of any official material) used to make a passport, including any distinctive
paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall
be fined under this title, imprisoned not more than 20 years, or
both.

.

(b)

False statement
in an application for a passport

Section 1542 of title 18, United States
Code, is amended to read as follows:

1542.

False
statement in an application for a passport

(a)

In
general

Whoever knowingly makes any false statement or
representation in an application for a United States passport, or mails,
prepares, presents, or signs an application for a United States passport
knowing the application to contain any false statement or representation, shall
be fined under this title, imprisoned not more than 15 years, or both.

(b)

Venue

(1)

In
general

An offense under subsection (a) may be prosecuted in any
district—

(A)

in which the false
statement or representation was made or the application for a United States
passport was prepared or signed; or

(B)

in which or to
which the application was mailed or presented.

(2)

Acts occurring
outside the United States

An offense under subsection (a)
involving an application for a United States passport prepared and adjudicated
outside the United States may be prosecuted in the district in which the
resultant passport was or would have been produced.

(c)

Savings
clause

Nothing in this section may be construed to limit the
venue otherwise available under sections 3237 and 3238 of this
title.

.

(c)

Forgery and
unlawful production of a passport

Section 1543 of title 18, United States
Code, is amended to read as follows:

1543.

Forgery and
unlawful production of a passport

(a)

Forgery

Any
person who knowingly—

(1)

forges,
counterfeits, alters, or falsely makes any passport; or

(2)

transfers any
passport knowing it to be forged, counterfeited, altered, falsely made, stolen,
or to have been produced or issued without lawful authority,

shall be
fined under this title, imprisoned not more than 15 years, or both.(b)

Unlawful
production

Any person who knowingly and without lawful
authority—

(1)

produces, issues,
authorizes, or verifies a passport in violation of the laws, regulations, or
rules governing the issuance of the passport;

(2)

produces, issues,
authorizes, or verifies a United States passport for or to any person knowing
or in reckless disregard of the fact that such person is not entitled to
receive a passport; or

(3)

transfers or
furnishes a passport to any person for use by any person other than the person
for whom the passport was issued or designed,

shall be
fined under this title, imprisoned not more than 15 years, or
both.

.

(d)

Misuse of a
passport

Section 1544 of
title 18, United States Code, is amended to read as follows:

1544.

Misuse of a
passport

Any person who
knowingly—

(1)

uses any passport
issued or designed for the use of another;

(2)

uses any passport
in violation of the conditions or restrictions therein contained, or in
violation of the laws, regulations, or rules governing the issuance and use of
the passport;

(3)

secures,
possesses, uses, receives, buys, sells, or distributes any passport knowing it
to be forged, counterfeited, altered, falsely made, procured by fraud, or
produced or issued without lawful authority; or

(4)

violates the terms
and conditions of any safe conduct duly obtained and issued under the authority
of the United States,

shall be
fined under this title, imprisoned not more than 15 years, or
both.

.

(e)

Schemes to
defraud aliens

Section 1545
of title 18, United States Code, is amended to read as follows:

1545.

Schemes to
defraud aliens

(a)

In
general

Any person who knowingly executes a scheme or artifice,
in connection with any matter that is authorized by or arises under Federal
immigration laws or any matter the offender claims or represents is authorized
by or arises under Federal immigration laws, to—

(1)

defraud any
person; or

(2)

obtain or receive
money or anything else of value from any person by means of false or fraudulent
pretenses, representations, or promises,

shall be
fined under this title, imprisoned not more than 15 years, or both.(b)

Misrepresentation

Any
person who knowingly and falsely represents that such person is an attorney or
an accredited representative (as that term is defined in section 1292.1 of
title 8, Code of Federal Regulations (or any successor regulation to such
section)) in any matter arising under Federal immigration laws shall be fined
under this title, imprisoned not more than 15 years, or
both.

.

(f)

Immigration and
visa fraud

Section 1546 of
title 18, United States Code, is amended—

(1)

by amending the section heading to read as
follows:

1546.

Immigration
and visa
fraud

;

and(2)

by striking
subsections (b) and (c) and inserting the following:

(b)

In
general

Any person who knowingly—

(1)

uses any
immigration document issued or designed for the use of another;

secures, possesses,
uses, buys, sells, or distributes 10 or more immigration documents, knowing the
immigration documents to be forged, counterfeited, altered, stolen, falsely
made, procured by fraud, or produced or issued without lawful authority;
or

(4)

completes, mails,
prepares, presents, signs, or submits 10 or more immigration documents knowing
the documents to contain any materially false statement or
representation,

shall be
fined under this title, imprisoned not more than 20 years, or both.

(d)

Immigration
document materials

Any person who knowingly and without lawful
authority produces, buys, sells, possesses, or uses any official material (or
counterfeit of any official material) used to make immigration documents,
including any distinctive paper, seal, hologram, image, text, symbol, stamp,
engraving, or plate, shall be fined under this title, imprisoned not more than
20 years, or both.

(e)

Employment
documents

Any person who uses—

(1)

an identification
document, knowing (or having reason to know) that the document was not issued
lawfully for the use of the possessor;

(2)

an identification
document knowing (or having reason to know) that the document is false;
or

(3)

a false
attestation,

for the
purpose of satisfying a requirement of section 274A(b) of the Immigration and
Nationality Act (8 U.S.C. 1324a(b)), shall be fined under this title,
imprisoned not more than 5 years, or
both.

.

(g)

Alternative
imprisonment maximum for certain offenses

Section 1547 of title 18, United States
Code, is amended—

(1)

in the matter
preceding paragraph (1), by striking (other than an offense under
section 1545);

(2)

in paragraph (1),
by striking 15 and inserting 20; and

(3)

in paragraph (2),
by striking 20 and inserting 25.

(h)

Attempts,
conspiracies, jurisdiction, and definitions

Chapter 75 of title 18, United States Code,
is amended by adding after section 1547 the following:

1548.

Attempts and
conspiracies

Any person who
attempts or conspires to violate any section of this chapter shall be punished
in the same manner as a person who completed a violation of that
section.

1549.

Additional
jurisdiction

(a)

In
general

Any person who commits an offense under this chapter
within the special maritime and territorial jurisdiction of the United States
shall be punished as provided under this chapter.

(b)

Extraterritorial
jurisdiction

Any person who commits an offense under this chapter
outside the United States shall be punished as provided under this chapter
if—

(1)

the offense
involves a United States passport or immigration document (or any document
purporting to be such a document) or any matter, right, or benefit arising
under or authorized by Federal immigration laws;

(2)

the offense is in
or affects foreign commerce;

(3)

the offense
affects, jeopardizes, or poses a significant risk to the lawful administration
of Federal immigration laws, or the national security of the United
States;

(4)

the offense is
committed to facilitate an act of international terrorism (as defined in
section 2331) or a drug trafficking crime (as defined in section 929(a)(2))
that affects or would affect the national security of the United States;

(5)

the offender is a
national of the United States or an alien lawfully admitted for permanent
residence (as those terms are defined in section 101(a) of the
Immigration and Nationality Act (8
U.S.C. 1101(a))); or

(6)

the offender is a
stateless person whose habitual residence is in the United States.

1550.

Authorized law enforcement
activities

Nothing in this
chapter shall prohibit any lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the United States, a
State, or a political subdivision of a State, or an intelligence agency of the
United States, or any activity authorized under title V of the Organized Crime
Control Act of 1970 (Public Law 91–452; 84 Stat. 933).

1551.

Definitions

As used in this chapter:

(1)

The term
application for a United States passport includes any document,
photograph, or other piece of evidence submitted in support of an application
for a United States passport.

includes any
document, photograph, or other piece of material evidence attached or submitted
in support of an immigration document described in subparagraph (A).

(3)

The term
immigration laws includes—

(A)

the laws described
in section 101(a)(17) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(17));

(B)

the laws relating
to the issuance and use of passports; and

(C)

the regulations
prescribed under the authority of any law described in subparagraph (A) or
(B).

(4)

A person does not
exercise lawful authority if the person abuses or improperly
exercises lawful authority the person otherwise holds.

(5)

The term
passport means—

(A)

a travel document attesting to the identity
and nationality of the bearer that is issued under the authority of the
Secretary of State, a foreign government, or an international organization;
or

(B)

any instrument purporting to be a document
described in subparagraph (A).

(6)

The term
produce means to make, prepare, assemble, issue, print,
authenticate, or alter.

(7)

The term to
present means to offer or submit for official processing, examination,
or adjudication. Any such presentation continues until the official processing,
examination, or adjudication is complete.

(8)

The
use of a passport or an immigration document referred to in
section 1541(a), 1543(b), 1544, 1546(a), and 1546(b) of this chapter
includes—

(A)

any officially
authorized use;

(B)

use to
travel;

(C)

use to demonstrate
identity, residence, nationality, citizenship, or immigration status;

(D)

use to seek or
maintain employment; or

(E)

use in any matter
within the jurisdiction of the Federal government or of a State
government.

.

(i)

Clerical
amendment

The table of
sections for chapter 75 of title 18, United States Code, is amended to read as
follows:

Sec.

1541. Trafficking in passports.

1542. False statement in an application for a
passport.

1543. Forgery and unlawful production of a
passport.

1544. Misuse of a passport.

1545. Schemes to defraud aliens.

1546. Immigration and visa fraud.

1547. Alternative imprisonment maximum for certain
offenses.

1548. Attempts and conspiracies.

1549. Additional jurisdiction.

1550. Authorized law enforcement activities.

1551.
Definitions.

.

222.

Other
immigration reforms

(a)

Directive to the
United States Sentencing Commission

(1)

In
general

Pursuant to the
authority under section 994 of title 28, United States Code, the United States
Sentencing Commission shall promulgate or amend the sentencing guidelines,
policy statements, and official commentaries related to passport fraud
offenses, including the offenses described in chapter 75 of title 18, United
States Code, as amended by section 221, to reflect the serious nature of such
offenses.

(2)

Report

Not later than 1 year after the date of the
enactment of this Act, the United States Sentencing Commission shall submit to
the Committee on the Judiciary of the Senate and the Committee on the Judiciary
of the House of Representatives a report on the implementation of this
subsection.

(b)

Release and
detention prior to disposition

(1)

Detention

Section
3142(e) of title 18, United States Code, is amended to read as follows:

(e)

Detention

(1)

If, after a hearing
pursuant to the provisions of subsection (f) of this section, the judicial
officer finds that no condition or combination of conditions will reasonably
assure the appearance of the person as required and the safety of any other
person and the community, such judicial officer shall order the detention of
the person before trial.

(2)

In a case described in subsection
(f)(1) of this section, a rebuttable presumption arises that no condition or
combination of conditions will reasonably assure the safety of any other person
and the community if such judicial officer finds that—

(A)

the person has been convicted of a
Federal offense that is described in subsection (f)(1) of this section, or of a
State or local offense that would have been an offense described in subsection
(f)(1) of this section if a circumstance giving rise to Federal jurisdiction
had existed;

(B)

the offense described in subparagraph
(A) of this paragraph was committed while the person was on release pending
trial for a Federal, State, or local offense; and

(C)

a period of not more than five years
has elapsed since the date of conviction, or the release of the person from
imprisonment, for the offense described in subparagraph (A) of this paragraph,
whichever is later.

(3)

Subject to rebuttal by the person, it
shall be presumed that no condition or combination of conditions will
reasonably assure the appearance of the person as required and the safety of
the community if the judicial officer finds that there is probable cause to
believe that the person committed an offense for which a maximum term of
imprisonment of ten years or more is prescribed in the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46, an offense under section
924(c), 956(a), or 2332b of this title, or an offense listed in section
2332b(g)(5)(B) of this title for which a maximum term of imprisonment of 10
years or more is prescribed, or an offense involving a minor victim under
section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1),
2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4),
2260, 2421, 2422, 2423, or 2425 of this
title.

.

(c)

Protection for
legitimate refugees and asylum seekers

(1)

Protection for
legitimate refugees and asylum seekers

The Attorney General, in
consultation with the Secretary of Homeland Security, shall develop binding
prosecution guidelines for Federal prosecutors to ensure that any prosecution
of an alien seeking entry into the United States by fraud is consistent with
the United States treaty obligations under Article 31(1) of the Convention
Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made
applicable by the Protocol Relating to the Status of Refugees, done at New York
January 31, 1967 (19 UST 6223)).

(2)

No private right
of action

The guidelines developed pursuant to paragraph (1), and
any internal office procedures related to such guidelines, are intended solely
for the guidance of attorneys of the United States. This subsection, such
guidelines, and the process for developing such guidelines are not intended to,
do not, and may not be relied upon to create any right or benefit, substantive
or procedural, enforceable at law by any party in any administrative, civil, or
criminal matter.

(3)

Waiver

The
Secretary may grant a waiver from prosecution under chapter 75 of title 18,
United States Code, as amended by section 211 of this Act, to a person—

(A)

seeking
protection, classification, or status under section 208 or 241(b)(3) of the
Immigration and Nationality Act, or relief under the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York,
December 10, 1994, pursuant to title 8, Code of Federal Regulations;

(B)

referred for a
credible fear interview, a reasonable fear interview, or an asylum-only hearing
under section 235 of the Immigration and Nationality Act or title 8, Code of
Federal Regulations; or

(C)

has filed an
application for classification or status under paragraph (15)(T), (15)(U),
(27)(J), or (51) of section 101(a) of the Immigration and Nationality Act,
section 216(c)(4)(C), 240A(b)(2), or section 244(a)(3) of such Act.

(d)

Diplomatic
security service

Section
37(a)(1) of the State Department Basic Authorities Act of 1956 (22 U.S.C.
2709(a)(1)) is amended to read as follows:

(1)

conduct
investigations concerning—

(A)

illegal passport
or visa issuance or use;

(B)

identity theft or
document fraud affecting or relating to the programs, functions, and
authorities of the Department of State;

(C)

violations of
chapter 77 of title 18, United States Code; and

(D)

Federal offenses
committed within the special maritime and territorial jurisdiction defined in
paragraph (9) of section 7 of title 18, United States
Code;

.

C

Detention and
removal of aliens who illegally enter or remain in the United States

231.

Detention and
removal of aliens ordered removed

(a)

In
general

Section 241(a) (8 U.S.C. 1231(a)) is amended—

(1)

in paragraph
(1)(A), by striking Attorney General and inserting
Secretary of Homeland Security;

(2)

in paragraphs (3),
(4), (5), (6), and (7), by striking Attorney General each place
it appears and inserting Secretary;

(3)

in
paragraph (1)—

(A)

by amending
subparagraph (C) to read as follows:

(C)

Extension of
removal period

(i)

In
general

The Secretary shall extend the removal period for more
than a period of 90 days and the alien may remain in detention during such
extended period if, during the removal period—

(I)

the alien—

(aa)

fails or refuses
to make timely application in good faith for travel or other documents
necessary for the alien to depart the United States; or

(bb)

conspires or acts
to prevent the removal of the alien subject to an order of removal; and

(II)

the Secretary
makes a certification described in paragraph (8)(B) for such alien.

(ii)

Stay of
removal

An alien seeking a stay of removal from an immigration
judge, a Federal judge, or the Board of Immigration Appeals shall not be deemed
under any provision of law to be conspiring or acting to prevent the removal of
the alien.

(iii)

Review

The
procedures described in paragraph (8)(E) shall apply to actions taken under
this subparagraph.

;
and

(B)

by adding at the
end the following:

(D)

Tolling of
period

If, at the time described in clause (i), (ii), or (iii) of
subparagraph (B), the alien is not in the custody of the Secretary under the
authority of this Act, the removal period shall not begin until the alien is
taken into such custody. If the Secretary lawfully transfers custody of the
alien during the removal period to another Federal agency or to a State or
local government agency in connection with the official duties of such agency,
the removal period shall be tolled until the date on which the alien is
returned to the custody of the
Secretary.

;

(4)

by amending
paragraph (2) to read as follows:

(2)

Detention

During
the removal period, the Secretary shall detain the alien. Under no
circumstances during the removal period shall the Secretary release an alien
who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) or
deportable under section 237(a)(2) or 1227(a)(4)(B). If a court, the Board of
Immigration Appeals, or an immigration judge orders a stay of removal of an
alien who is subject to an administratively final order of removal, the
Secretary, in the exercise of discretion, may detain or supervise the alien
during the pendency of such stay of removal, subject to the limitations set
forth in subparagraphs (3), (6), and
(8).

;

(5)

in paragraph
(3)—

(A)

in the matter
preceding subparagraph (A), by striking If and inserting
Subject to the requirements of paragraphs (6) and (8), if;
and

(B)

by striking
subparagraph (D) and inserting the following:

(D)

to obey reasonable
restrictions on the alien’s conduct or activities, or to perform affirmative
acts prescribed by the Secretary—

(i)

to
prevent the alien from absconding; or

(ii)

to protect the
community;

(E)

if
appropriate—

(i)

to
utilize an electronic monitoring device;

(ii)

to
complete parole and probation requirements for aliens with outstanding
obligations under Federal or State law; and

(F)

to comply with any
other conditions of such supervision that the Secretary determines is
appropriate.

;

(6)

in paragraph (6),
by inserting , subject to the provisions of paragraph (8) after
beyond the removal period;

(7)

by redesignating
paragraph (7) as paragraph (11);

(8)

by inserting after
paragraph (6) the following:

(7)

Parole

(A)

In
general

If an alien detained pursuant to paragraph (6) is an
applicant for admission and is released from detention, such release shall be
considered to be made as an exercise of the Secretary’s parole authority under
212(d)(5). Notwithstanding section 212(d)(5), the Secretary may provide that
the alien shall not be returned to custody unless—

(i)

the
alien violates the conditions of the alien’s parole under this section;

(ii)

the alien's
removal becomes reasonably foreseeable; or

(iii)

the alien
violates the conditions set out in paragraph (3).

(B)

Not an
admission

Under no circumstance shall an alien paroled under this
section be considered admitted to the United States.

(8)

Additional rules
for detention or release of aliens beyond removal period

(A)

Detention after
removal period

The Secretary is authorized to detain an alien who
has effected an entry into the United States—

(i)

for not more than
90 days beyond the removal period if the Secretary is seeking to make a
certification described in subparagraph (B) for the alien; or

(ii)

for more than 90
days beyond the removal period if the Secretary has made a certification
described in subparagraph (B) for the alien, subject to the conditions set out
in this paragraph.

(B)

Certification

A
certification described in this subparagraph is a written certification made by
the Secretary in which the Secretary determines—

(i)

that the alien is
significantly likely to be removed in the reasonably foreseeable future;

(ii)

that the alien
has failed to make a timely application, in good faith, for travel documents or
has otherwise conspired or acted to prevent the removal of the alien;

(iii)

that the alien
would have been removed if the alien had not—

(I)

failed or refused
to make all reasonable efforts to comply with the removal order;

(II)

failed or refused
to fully cooperate with the efforts of the Secretary to establish the alien’s
identity and carry out the removal order, including failing to submit a timely
application, in good faith, for travel or other documents necessary for the
alien’s departure from the United States; or

(III)

conspired or
acted to prevent such removal;

(iv)

in consultation
with the Secretary of Health and Human Services, that the alien has a highly
contagious disease that poses a threat to public safety, in which case the
alien may be quarantined in a civil medical facility;

(v)

on
the basis of information available to the Secretary (including classified and
national security information), regardless of the grounds upon which the alien
was ordered removed and pursuant to a written certification under section 236A,
that there is reason to believe that the release of the alien would threaten
the national security of the United States; or

(vi)

that the release
of the alien would threaten the safety of the community, notwithstanding
conditions of release designed to ensure the safety of the community or any
person and the alien—

(I)

has been convicted
of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1
or more attempts or conspiracies to commit any such aggravated felonies for
which the alien served an aggregate term of imprisonment of at least 5 years
and the alien is likely to engage in acts of violence in the future; or

(II)

because of a
mental condition or personality disorder (certified under section 232(b)) and
behavior associated with that condition or disorder, is likely to engage in
acts of violence in the future, in which case the alien may be referred for
review and evaluation for civil commitment pursuant to the civil commitment
statute of the State in which the alien resides.

(C)

Delegation

Notwithstanding
any other provision of law, the Secretary may not delegate the authority to
make a certification described in subparagraph (B) to any official lower than
the Assistant Secretary for Immigration and Customs Enforcement.

(D)

Administrative
review

(i)

In
general

The Secretary shall establish an administrative review
process to permit an alien to appeal a decision by the Secretary to detain the
alien after the removal period under subparagraph (A) or to extend the removal
period for the alien under paragraph (1)(C).

(ii)

Review

An
immigration judge shall review a determination by the Secretary to detain an
alien under subparagraph (A) or paragraph (1)(C). An immigration judge shall
uphold such determination of the Secretary if the Secretary establishes at a
hearing, by clear and convincing evidence, that such detention is authorized
under subparagraph (A) or paragraph (1)(C). In making this determination, the
court shall disclose, if otherwise discoverable, to the alien, the counsel of
the alien, or both, under procedures and standards set forth in the Classified
Information Procedures Act (18 U.S.C. App.), any evidence that the Secretary
relied on in making a determination under this section unless the court finds
that such disclosure would not assist in determining any legal or factual issue
pertinent to the case. The decision of the immigration judge shall not be
subject to appeal, but shall be reviewable in a habeas corpus proceeding under
section 2241 of title 28, United States Code.

(E)

Renewal of
extended detention

(i)

Renewal of
detention

The Secretary may renew a certification under
subparagraph (B) every 180 days after providing the alien with an opportunity
to submit documents or other evidence in support of release. Unless the
Secretary determines that continued detention under subparagraph (A) or
paragraph (1)(C) is warranted, the Secretary shall release the alien subject to
the conditions of supervision described in paragraph (3).

(ii)

Review

Any
renewal of a certification under clause (i) shall be subject to review as
described in subparagraph (E) and any such review shall be completed before the
date that is 180 days after the date the alien's detention was continued under
subparagraph (A) or paragraph (1)(C) or the date of the previous renewal of
such detention under clause (i).

(F)

Applicability

This
paragraph and paragraphs (6) and (7) shall apply to any alien returned to
custody under paragraph (9) as if the removal period terminated on the day of
the redetention.

(9)

Redetention

The
Secretary may not detain any alien subject to a final removal order who has
previously been released from custody unless—

(A)

the alien fails to
comply with the conditions of departure applicable to the alien;

(B)

the alien fails to
continue to satisfy the conditions of supervision under paragraph (3);
or

(C)

upon
reconsideration, the Secretary makes a certification for the alien described in
paragraph (8)(B).

(10)

Judicial
review

Without regard to the place of confinement, judicial
review of any action or decision made pursuant to paragraph (6), (7), or (8)
shall be available exclusively in a habeas corpus proceeding brought in a
United States district court in the judicial district in which the alien is
detained or in which the alien's removal proceeding was
initiated.

.

(b)

Effective
date

The amendments made by this section—

(1)

shall take effect
on the date of the enactment of this Act; and

(2)

shall apply
to—

(A)

any alien subject
to a final administrative removal, deportation, or exclusion order that was
issued before, on, or after the date of the enactment of this Act; and

(B)

any act or
condition occurring or existing before, on, or after the date of the enactment
of this Act.

232.

Increased
criminal penalties for immigration violations

(a)

Pending
proceedings

Section 204(b) (8 U.S.C. 1154(b)) is amended by
adding at the end A petition may not be approved under this section if
the petitioner has been found removable from the United States..

(b)

Conditional
permanent resident status

(1)

In
general

Section 216(e) (8 U.S.C. 1186a(e)) is amended by
inserting if the alien applied for the removal of condition not less
than 90 days before applying for naturalization before the period at
the end.

(2)

Certain alien
entrepreneurs

Section 216A(e) (8 U.S.C. 1186b(e)) is amended by
inserting if the alien applied for the removal of condition not less
than 90 days before applying for naturalization before the period at
the end.

(c)

Concurrent
naturalization and removal proceedings

Section 318 (8 U.S.C.
1429) is amended to read as follows:

318.

Prerequisite to
naturalization; Burden of Proof

(a)

In
general

Except as otherwise provided in this title, no person
shall be naturalized unless the person has been lawfully admitted to the United
States for permanent residence in accordance with all applicable provisions of
this Act. The burden of proof shall be upon such person to show that the person
entered the United States lawfully, and the time, place, and manner of such
entry into the United States, but in presenting such proof the person shall be
entitled to the production of the person's's immigrant visa, if any, or of
other entry document, if any, and of any other documents and records, not
considered by the Secretary of Homeland Security to be confidential, pertaining
to such entry, in the custody of the Department of Homeland Security.

(b)

Other
proceedings

Notwithstanding the provisions of section 405(b), and
except as provided in sections 328 and 329, no person shall be naturalized
against whom there is outstanding a final finding of deportability pursuant to
a warrant of arrest issued under the provisions of this or any other Act and no
application for naturalization shall be considered by the Secretary of Homeland
Security or any court if there is pending against the applicant any removal
proceeding or other proceeding to determine the applicant’s inadmissibility or
deportability, or to determine whether the applicant's lawful permanent
resident status should be rescinded, if the removal proceeding or other
proceeding was commenced before a final agency decision on naturalization made
pursuant to a hearing requested under section 336(a). The findings of the
Secretary in terminating removal proceedings or canceling the removal of an
alien under this Act shall not be binding upon the Secretary in determining
whether such person has established eligibility for naturalization under this
title.

.

(d)

District court
jurisdiction

Section 336(b) (8 U.S.C. 1447(b)) is amended to read
as follows:

(b)

Request for
hearing before district court

If a final administrative decision
is not rendered under section 335 before the end of the 180-day period
beginning on the date on which the examination is conducted under such section,
the applicant may apply to the United States district court for the district in
which the applicant resides for a hearing on the matter. Such court has
jurisdiction over the matter and may—

(1)

determine the
matter; or

(2)

remand the matter,
with appropriate instructions, to the Secretary of Homeland Security, to
determine the
matter.

.

(e)

Effective
date

The amendments made by this section—

(1)

shall apply to any
act that occurred on or after the date of enactment of this Act; and

(2)

shall apply to any
application for naturalization or any case or matter under the immigration laws
filed on or after such date of enactment.

233.

Aggravated
felony

(a)

Definition of
aggravated felony

Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is
amended—

(1)

in the matter
preceding subparagraph (A), by striking The term aggravated
felony means— and inserting Notwithstanding any other
provision of law, the term aggravated felony applies to an offense
described in this paragraph, whether in violation of Federal or State law, and
to such an offense in violation of the law of a foreign country for which the
term of imprisonment was completed within the previous 15 years, and regardless
of whether the conviction was entered before, on, or after September 30, 1996
and means—;

(2)

in subparagraph
(N), by striking paragraph (1)(A) or (2) of and inserting
paragraph (1)(A), (2), or (4) of; and

(3)

by
striking the undesignated matter following subparagraph (U).

(b)

Effective date
and application

(1)

In
general

The amendments made by subsection (a) shall—

(A)

take effect on the
date of enactment of this Act; and

(B)

apply to any act
that occurred on or after the date of enactment of this Act.

(2)

Application of
IIRAIRA amendments

The amendments to section 101 (a)(43) of the
Immigration and Nationality Act made by section 321 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (division C of Public Law
104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction
was entered before, on, or after September 30, 1996.

Unless the Secretary of Homeland Security
or the Attorney General waives the application of this subparagraph, any alien
who has been convicted of a crime under section 521 of title 18, United States
Code, is
inadmissible.

.

(2)

Deportability

Section
237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by adding at the end the
following:

(F)

Members of
criminal street gangs

Unless the Secretary of Homeland Security
or the Attorney General waives the application of this subparagraph, any alien
who has been convicted of a crime under section 521 of title 18, United States
Code, is
deportable.

.

(3)

Temporary
protected status

Section 244 (8 U.S.C. 1254a) is amended—

(A)

by striking
Attorney General each place it appears and inserting
Secretary of Homeland Security;

(B)

in subsection
(c)(2)(B)—

(i)

in
clause (i), by striking , or at the end;

(ii)

in
clause (ii), by striking the period at the end and inserting ;
or; and

(iii)

by
adding at the end the following:

(iii)

the alien has
been convicted of a crime under section 521 of title 18, United States
Code.

;
and

(C)

in subsection
(d)—

(i)

by
striking paragraph (3); and

(ii)

in
paragraph (4), by adding at the end the following: The Secretary of
Homeland Security shall detain an alien provided temporary protected status
under this section if the alien is subject to detention under section
236(c)(1)..

(b)

Penalties
related to removal

Section 243 (8 U.S.C. 1253) is amended—

(1)

in
subsection (a)(1)—

(A)

in the matter
preceding subparagraph (A), by inserting 212(a) or after
section; and

(B)

in the matter
following subparagraph (D)—

(i)

by
striking or imprisoned not more than four years and inserting
and imprisoned for not more than 5 years; and

(ii)

by
striking , or both; and

(2)

in subsection (b),
by striking not more than $1000 or imprisoned for not more than one
year, or both and inserting under title 18, United States Code,
and imprisoned for not more than 5 years (or for not more than 10 years if the
alien is removable under paragraph (1)(E), (2), or (4) of section
237(a))..

(c)

Alien smuggling
and related offenses

(1)

In
general

Section 274 (8 U.S.C. 1324) is amended—

(A)

by striking the
section heading and all that follows through subsection (a)(1)(B)(iii);

(B)

by striking
subsection (a)(1)(C) and all that follows through the end;

(C)

by redesignating
subsection (a)(1)(B)(iv) as subparagraph (G) and indenting such subparagraph
(G) four ems from the left margin;

(D)

by amending
subparagraph (G), as redesignated by subparagraph (C), by striking in
the case of a violation of subparagraph (A) (i), (ii), (iii), (iv), or (v)
resulting and inserting if the offense resulted;

(E)

by inserting
before subparagraph (G), as redesignated by subparagraph (C), the
following:

274.

Alien smuggling
and related offenses

(a)

Criminal
offenses and penalties

(1)

Prohibited
activities

Except as provided in paragraph (3), a person shall be
punished as provided under paragraph (2), if the person—

(A)

encourages,
directs, or induces a person to come to or enter the United States, or to cross
the border to the United States, knowing or in reckless disregard of the fact
that such person is an alien who lacks lawful authority to come to, enter, or
cross the border to the United States;

(B)

encourages,
directs, or induces a person to come to or enter the United States, or to cross
the border to the United States, at a place other than a designated port of
entry or place other than as designated by the Secretary of Homeland Security,
knowing or in reckless disregard of the fact that such person is an alien and
regardless of whether such alien has official permission or lawful authority to
be in the United States;

(C)

transports, moves,
harbors, conceals, or shields from detection a person outside of the United
States knowing or in reckless disregard of the fact that such person is an
alien in unlawful transit from 1 country to another or on the high seas, under
circumstances in which the alien is seeking to enter the United States without
official permission or legal authority;

(D)

encourages or
induces a person to reside in the United States, knowing or in reckless
disregard of the fact that such person is an alien who lacks lawful authority
to reside in the United States;

(E)

transports or
moves a person in the United States, knowing or in reckless disregard of the
fact that such person is an alien who lacks lawful authority to enter or be in
the United States, if the transportation or movement will further the alien's
illegal entry into or illegal presence in the United States;

(F)

harbors, conceals,
or shields from detection a person in the United States, knowing or in reckless
disregard of the fact that such person is an alien who lacks lawful authority
to be in the United States; or

(G)

conspires or
attempts to commit any of the acts described in subparagraphs (A) through
(F).

(2)

Criminal
penalties

A person who violates any provision under paragraph
(1)—

(A)

except as provided
in subparagraphs (C) through (G), if the offense was not committed for
commercial advantage, profit, or private financial gain, shall be fined under
title 18, United States Code, imprisoned for not more than 5 years, or
both;

(B)

except as provided
in subparagraphs (C) through (G), if the offense was committed for commercial
advantage, profit, or private financial gain—

(i)

if
the violation is the offender’s first violation under this subparagraph, shall
be fined under such title, imprisoned for not more than 15 years, or both;
or

(ii)

if the violation
is the offender’s second or subsequent violation of this subparagraph, shall be
fined under such title, imprisoned for not more than 20 years, or both;

(C)

if the offense
furthered or aided the commission of any other offense against the United
States or any State that is punishable by imprisonment for more than 1 year,
shall be fined under such title, imprisoned for not more than 20 years, or
both;

(D)

shall be fined
under such title, imprisoned not more than 20 years, or both, if the offense
created a substantial and foreseeable risk of death, a substantial and
foreseeable risk of serious bodily injury (as defined in section 2119(2) of
title 18, United States Code), or inhumane conditions to another person,
including—

(i)

transporting the
person in an engine compartment, storage compartment, or other confined
space;

(ii)

transporting the
person at an excessive speed or in excess of the rated capacity of the means of
transportation; or

(iii)

transporting the
person in, harboring the person in, or otherwise subjecting the person to
crowded or dangerous conditions;

(E)

if the offense
caused serious bodily injury (as defined in section 2119(2) of title 18, United
States Code) to any person, shall be fined under such title, imprisoned for not
more than 30 years, or both;

(F)

shall be fined
under such title and imprisoned for not more than 30 years if the offense
involved an alien who the offender knew was—

(i)

engaged in
terrorist activity (as defined in section 212(a)(3)(B)); or

(ii)

intending to
engage in terrorist activity; and

(F)

by inserting after
subparagraph (G), as redesignated by subparagraph (C), the following:

(4)

Limitation

It
is not a violation of subparagraph (D), (E), or (F) of paragraph (1)—

(A)

for a religious
denomination having a bona fide nonprofit, religious organization in the United
States, or the agents or officers of such denomination or organization, to
encourage, invite, call, allow, or enable an alien who is present in the United
States to perform the vocation of a minister or missionary for the denomination
or organization in the United States as a volunteer who is not compensated as
an employee, notwithstanding the provision of room, board, travel, medical
assistance, and other basic living expenses, provided the minister or
missionary has been a member of the denomination for at least 1 year; or

(B)

for an individual
or organization acting without compensation or expectation of compensation and
not previously convicted of a violation of this section, to—

(i)

provide, or
attempt to provide, an alien who is present in the United States with
humanitarian assistance, including medical care, housing, counseling, victim
services, and food; or

(ii)

transport the
alien to a location where such assistance can be rendered.

(5)

Extraterritorial
jurisdiction

There is extraterritorial Federal jurisdiction over
the offenses described in this
subsection.

;
and

(G)

by striking
subsections (b) through (e) and inserting the following:

(b)

Employment of
unauthorized aliens

(1)

Criminal offense
and penalties

Any person who, during any 12-month period,
knowingly employs 10 or more individuals with actual knowledge or in reckless
disregard of the fact that the individuals are aliens described in paragraph
(2), shall be fined under title 18, United States Code, imprisoned for not more
than 10 years, or both.

(2)

Definition

An
alien described in this paragraph is an alien who—

(A)

is an unauthorized
alien (as defined in section 274A);

(B)

is present in the
United States without lawful authority; and

(C)

has been brought
into the United States in violation of this subsection.

(c)

Seizure and
forfeiture

(1)

In
general

Any conveyance used to commit or facilitate the
commission of a violation of this section, the gross proceeds of such
violation, and any property traceable to such property or proceeds, shall be
subject to forfeiture.

(2)

Applicable
procedures

Seizures and forfeitures under this subsection shall
be governed by the provisions of chapter 46 of title 18, United States Code,
relating to civil forfeitures, except that such duties as are imposed upon the
Secretary of the Treasury under the customs laws described in section 981(d)
shall be performed by such officers, agents, and other persons as may be
designated for that purpose by the Secretary of Homeland Security.

(3)

Prima facie
evidence in determinations of violations

In determining whether a
violation of subsection (a) has occurred, prima facie evidence that an alien
involved in the alleged violation lacks lawful authority to come to, enter, or
reside in the United States, or that such alien had come to, entered, or
resided in the United States in violation of law shall include—

(A)

any order,
finding, or determination concerning the alien’s status or lack of status made
by a Federal judge or administrative adjudicator (including an immigration
judge or immigration officer) during any judicial or administrative proceeding
authorized under Federal immigration law;

(B)

official records
of the Department of Homeland Security, the Department of Justice, or the
Department of State concerning the alien’s status or lack of status; and

(C)

testimony by an
immigration officer having personal knowledge of the facts concerning the
alien’s status or lack of status.

(d)

Authority to
arrest

No officer or person shall have authority to make any
arrests for a violation of any provision of this section except—

(1)

officers and
employees designated by the Secretary of Homeland Security, either individually
or as a member of a class; and

(2)

other officers
responsible for the enforcement of Federal criminal laws.

(e)

Admissibility of
videotaped witness testimony

Notwithstanding any provision of the
Federal Rules of Evidence, the videotaped or otherwise audiovisually preserved
deposition of a witness to a violation of subsection (a) who has been deported
or otherwise expelled from the United States, or is otherwise unavailable to
testify, may be admitted into evidence in an action brought for that violation
if—

(1)

the witness was
available for cross examination at the deposition by the party, if any,
opposing admission of the testimony; and

(2)

the deposition
otherwise complies with the Federal Rules of Evidence.

(f)

Outreach
program

(1)

In
general

The Secretary of Homeland Security, in consultation with
the Attorney General and the Secretary of State, as appropriate, shall—

(A)

develop and
implement an outreach program to educate people in and out of the United States
about the penalties for bringing in and harboring aliens in violation of this
section; and

(B)

establish the
American Local and Interior Enforcement Needs (ALIEN) Task Force to identify
and respond to the use of Federal, State, and local transportation
infrastructure to further the trafficking of unlawful aliens within the United
States.

(2)

Field
offices

The Secretary of Homeland Security, after consulting with
State and local government officials, shall establish such field offices as may
be necessary to carry out this subsection.

(3)

Authorization of
appropriations

There are authorized to be appropriated such sums
are necessary for the fiscal years 2008 through 2012 to carry out this
subsection.

.

(2)

Clerical
amendment

The table of contents is amended by striking the item
relating to section 274 and inserting the following:

Sec. 274. Alien smuggling and related
offenses.

.

(d)

Prohibiting
carrying or using a firearm during and in relation to an alien smuggling
crime

Section 924(c) of title 18, United States Code, is
amended—

(1)

in
paragraph (1)—

(A)

in subparagraph
(A), by inserting , alien smuggling crime, after any
crime of violence;

(B)

in subparagraph
(A), by inserting , alien smuggling crime, after such
crime of violence;

(C)

in subparagraph
(D)(ii), by inserting , alien smuggling crime, after
crime of violence; and

(2)

by adding at the
end the following:

(6)

For purposes of this subsection, the
term alien smuggling crime means any felony punishable under
section 274(a), 277, or 278 of the Immigration
and Nationality Act (8 U.S.C. 1324(a), 1327, and
1328).

.

235.

Illegal
entry

(a)

In
general

Section 275 (8 U.S.C. 1325) is amended to read as
follows:

275.

Illegal
entry

(a)

In
General

(1)

Criminal
offenses

An alien shall be subject to the penalties set forth in
paragraph (2) if the alien—

(A)

knowingly enters
or crosses the border into the United States at any time or place other than as
designated by the Secretary of Homeland Security;

(B)

knowingly eludes
examination or inspection by an immigration officer (including failing to stop
at the command of such officer), or a customs or agriculture inspection at a
port of entry; or

(C)

knowingly enters or
crosses the border to the United States by means of a willfully false or
misleading representation or the knowing concealment of a material fact
(including such representation or concealment in the context of arrival,
reporting, entry, or clearance requirements of the customs laws, immigration
laws, agriculture laws, or shipping laws).

(2)

Criminal
penalties

Any alien who violates any provision under paragraph
(1)—

(A)

shall, for the
first violation, be fined under title 18, United States Code, imprisoned not
more than 6 months, or both;

(B)

shall, for a
second or subsequent violation, or following an order of voluntary departure,
be fined under such title, imprisoned not more than 2 years, or both;

(C)

if the violation
occurred after the alien had been convicted of 3 or more misdemeanors or for a
felony, shall be fined under such title, imprisoned not more than 5 years, or
both;

(D)

if the violation
occurred after the alien had been convicted of a felony for which the alien
received a term of imprisonment of not less than 30 months, shall be fined
under such title, imprisoned not more than 10 years, or both; and

(E)

if the violation
occurred after the alien had been convicted of a felony for which the alien
received a term of imprisonment of not less than 60 months, such alien shall be
fined under such title, imprisoned not more than 15 years, or both.

(3)

Prior
convictions

The prior convictions described in subparagraphs (C)
through (E) of paragraph (2) are elements of the offenses described in that
paragraph and the penalties in such subparagraphs shall apply only in cases in
which the conviction or convictions that form the basis for the additional
penalty are—

(A)

alleged in the
indictment or information; and

(B)

proven beyond a
reasonable doubt at trial or admitted by the defendant.

(4)

Attempt

Whoever
attempts to commit any offense under this section shall be punished in the same
manner as for a completion of such offense.

(b)

Improper time or
place; civil penalties

Any alien who is apprehended while
entering, attempting to enter, or knowingly crossing or attempting to cross the
border to the United States at a time or place other than as designated by
immigration officers shall be subject to a civil penalty, in addition to any
criminal or other civil penalties that may be imposed under any other provision
of law, in an amount equal to—

(1)

not less than $50
or more than $250 for each such entry, crossing, attempted entry, or attempted
crossing; or

(2)

twice the amount
specified in paragraph (1) if the alien had previously been subject to a civil
penalty under this
subsection.

.

(b)

Clerical
amendment

The table of contents is amended by striking the item
relating to section 275 and inserting the following:

Sec. 275. Illegal
entry.

.

236.

Illegal
reentry

Section 276 (8 U.S.C.
1326) is amended to read as follows:

276.

Reentry of
removed aliens

(a)

Reentry after
removal

Any alien who has been denied admission, excluded,
deported, or removed, or who has departed the United States while an order of
exclusion, deportation, or removal is outstanding, and subsequently enters,
attempts to enter, crosses the border to, attempts to cross the border to, or
is at any time found in the United States, shall be fined under title 18,
United States Code, imprisoned not more than 2 years, or both.

(b)

Reentry of
criminal offenders

Notwithstanding the penalty provided in
subsection (a), if an alien described in that subsection—

(1)

was convicted for 3
or more misdemeanors or a felony before such removal or departure, the alien
shall be fined under title 18, United States Code, imprisoned not more than 10
years, or both;

(2)

was convicted for a
felony before such removal or departure for which the alien was sentenced to a
term of imprisonment of not less than 30 months, the alien shall be fined under
such title, imprisoned not more than 15 years, or both;

(3)

was convicted for
a felony before such removal or departure for which the alien was sentenced to
a term of imprisonment of not less than 60 months, the alien shall be fined
under such title, imprisoned not more than 20 years, or both;

(4)

was convicted for
3 felonies before such removal or departure, the alien shall be fined under
such title, imprisoned not more than 20 years, or both; or

(5)

was convicted,
before such removal or departure, for murder, rape, kidnaping, or a felony
offense described in chapter 77 (relating to peonage and slavery) or 113B
(relating to terrorism) of such title, the alien shall be fined under such
title, imprisoned not more than 20 years, or both.

(c)

Reentry after
repeated removal

Any alien who has been denied admission,
excluded, deported, or removed 3 or more times and thereafter enters, attempts
to enter, crosses the border to, attempts to cross the border to, or is at any
time found in the United States, shall be fined under title 18, United States
Code, imprisoned not more than 10 years, or both.

(d)

Proof of prior
convictions

The prior convictions described in subsection (b) are
elements of the crimes described in that subsection, and the penalties in that
subsection shall apply only in cases in which the conviction or convictions
that form the basis for the additional penalty are—

(1)

alleged in the
indictment or information; and

(2)

proven beyond a
reasonable doubt at trial or admitted by the defendant.

(e)

Affirmative
defenses

It shall be an affirmative defense to a violation of
this section that—

(1)

prior to the
alleged violation, the alien had sought and received the express consent of the
Secretary of Homeland Security to reapply for admission into the United
States;

(2)

with respect to an
alien previously denied admission and removed, the alien—

(A)

was not required
to obtain such advance consent under this Act or any prior Act; and

(B)

had complied with
all other laws and regulations governing the alien’s admission into the United
States;

(3)

the prior order of
removal was based on charges filed against the alien before the alien reached
18 years of age; or

(4)

the alien has been
found eligible for protection from removal pursuant to section 208.

(f)

Limitation on
collateral attack on underlying removal order

In a criminal
proceeding under this section, an alien may not challenge the validity of any
prior removal order concerning the alien unless the alien demonstrates by clear
and convincing evidence that—

(1)

the alien
exhausted all administrative remedies that may have been available to seek
relief against the order;

(2)

the removal
proceedings at which the order was issued improperly deprived the alien of the
opportunity for judicial review; and

(3)

the entry of the
order was fundamentally unfair.

(g)

Reentry of alien
removed prior to completion of term of imprisonment

Any alien
removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses
the border to, attempts to cross the border to, or is at any time found in, the
United States shall be incarcerated for the remainder of the sentence of
imprisonment which was pending at the time of deportation without any reduction
for parole or supervised release unless the alien affirmatively demonstrates
that the Secretary of Homeland Security has expressly consented to the alien’s
reentry. Such alien shall be subject to such other penalties relating to the
reentry of removed aliens as may be available under this section or any other
provision of law.

(h)

Limitation

It
is not aiding and abetting a violation of this section for an individual,
acting without compensation or the expectation of compensation, to—

(1)

provide, or
attempt to provide, an alien with humanitarian assistance, including emergency
medical care, food; or

(2)

transport the
alien to a location where such assistance can be
rendered.

.

III

Employment
Verification

301.

Employment
verification

(a)

In
general

Section 274A (8 U.S.C. 1324a) is amended to read as
follows:

274A.

Employment
verification

(a)

Making
employment of unauthorized aliens unlawful

(1)

In
general

It is unlawful for an employer—

(A)

to hire, recruit,
or refer for a fee an alien for employment in the United States knowing or with
reckless disregard that the alien is an unauthorized alien with respect to such
employment; or

(B)

to hire in the
United States an individual unless such employer meets the requirements of
subsections (b) and (c).

(2)

Continuing
employment

It is unlawful for an employer, after lawfully hiring
an alien for employment, to continue to employ the alien in the United States
knowing that the alien is (or has become) an unauthorized alien with respect to
such employment.

(3)

Use of labor
through contract

An employer who uses a contract, subcontract, or
exchange entered into, renegotiated, or extended after the date of the
enactment of the STRIVE Act of 2007, to obtain the labor of an alien in the
United States knowing or with reckless disregard that the alien is an
unauthorized alien with respect to performing such labor, shall be considered
to have hired the alien for employment in the United States in violation of
paragraph (1)(A).

(4)

Order of
internal review and certification of compliance

(A)

Authority to
require certification

If the Secretary has reasonable cause to
believe that an employer has failed to comply with this section, the Secretary
is authorized, at any time, to require that the employer certify that the
employer is in compliance with this section or has instituted a program to come
into compliance with the section.

(B)

Content of
certification

Not later than 60 days after the date an employer
receives a request for a certification under subparagraph (A) the employer
shall certify under penalty of perjury that—

(i)

the employer is in
compliance with the requirements of subsections (b) and (c); or

(ii)

that the employer
has instituted a program to come into compliance with such requirements.

(C)

Extension

The
60-day period referred to in subparagraph (B), may be extended by the Secretary
for good cause, at the request of the employer.

(D)

Publication

The
Secretary is authorized to publish in the Federal Register standards or methods
for certification under subparagraph (A) and for specific recordkeeping
practices with respect to such certification, and procedures for the audit of
any records related to such certification.

(5)

Defense

(A)

In
general

Subject to subparagraph (B), an employer that establishes
that the employer has complied in good faith, notwithstanding a technical or
procedural failure, with the requirements of subsections (b) and (c) with
respect to the hiring of an individual has established an affirmative defense
that the employer has not violated paragraph (1)(B) with respect to such
hiring.

(B)

Exception

Until
the date that an employer is required to participate in the Electronic
Employment Verification System under subsection (c), the employer may establish
an affirmative defense under subparagraph (A) without a showing of compliance
with subsection (c).

(6)

No authorization
of national identification cards

Nothing in this title may be
construed to authorize, directly or indirectly, the issuance, use, or
establishment of a national identification card or a national identification
system.

(b)

Document
verification requirements

An employer hiring an individual for
employment in the United States shall verify that the individual is eligible
for such employment by meeting the following requirements:

(1)

Attestation by
employer

(A)

Requirements

(i)

In
general

The employer shall attest, under penalty of perjury and
on a form prescribed by the Secretary, that the employer has verified the
identity and eligibility for employment of the individual by examining a
document described in subparagraph (B).

(ii)

Signature
requirements

An attestation required by clause (i) may be
manifested by a handwritten or electronic signature.

(iii)

Standards for
examination

An employer has complied with the requirement of this
paragraph with respect to examination of a document if the document examined
reasonably appears on its face to be genuine and relates to the individual
whose identity and eligibility for employment in the United States is being
verified. Nothing in this paragraph may be construed as requiring the employer
to solicit the production of any other document or as requiring the individual
to produce such other document.

(B)

Employment and
identification documents

A document described in this
subparagraph is—

(i)

in
the case of an individual who is a national of the United States—

(I)

a United States
passport;

(II)

a biometric, machine readable,
tamper-resistant Social Security card, as described in section 205(c)(2)(G) of
the Social Security Act (42 U.S.C. 405(c)(2)(G)); or

(III)

a driver's
license or identity card issued by a State, the Commonwealth of the Northern
Mariana Islands, or an outlying possession of the United States that satisfies
the requirements of Division B of Public Law 109–13 (119 Stat. 302);

(ii)

in
the case of an alien who is lawfully admitted for permanent residence in the
United States—

(I)

a permanent
resident card, as specified by the Secretary; or

(II)

a biometric, machine readable,
tamper-resistant Social Security card, as described in section 205(c)(2)(G) of
the Social Security Act (42 U.S.C. 405(c)(2)(G));

(iii)

in the case of an alien who is not lawfully
admitted for permanent residence and who is authorized under this Act or by the
Secretary to be employed in the United States—

(I)

an employment
authorization card, as specified by the Secretary, that—

(aa)

contains a
photograph of the individual or other identifying information, including name,
date of birth, gender, and address; and

(bb)

contains security
features to make the document resistant to tampering, counterfeiting, and
fraudulent use; or

(II)

a biometric, machine readable,
tamper-resistant Social Security card, as described in section 205(c)(2)(G) of
the Social Security Act (42 U.S.C. 405(c)(2)(G));

(iv)

in the case of an
individual who is unable to obtain a document described in clause (i), (ii), or
(iii), a document designated by the Secretary that—

(I)

contains a
photograph of the individual or other identifying information, including name,
date of birth, gender, and address; and

(II)

contains security
features to make the document resistant to tampering, counterfeiting, and
fraudulent use; or

(v)

until the date
that an employer is required to participate in the Electronic Employment
Verification System under subsection (c) or is participating in such System on
a voluntary basis, a document, or a combination of documents, of such type
that, as of the date of the enactment of the STRIVE Act of 2007, the Secretary
had established by regulation were sufficient for purposes of this
section.

(C)

Special rule for
minors

Notwithstanding subparagraph (B), a minor who is under the
age of 18 and who is unable to produce an identity document described in clause
(i) through (v) of subparagraph (B) is exempt from producing such a document
if—

(i)

a
parent or legal guardian of the minor completes a form prescribed by the
Secretary, and in the space for the minor’s signature, the parent or legal
guardian writes the words, minor under age 18;

(ii)

a
parent or legal guardian of the minor completes a form prescribed by the
Secretary, the Preparer/Translator certification; and

(iii)

the employer of
the minor writes in a form prescribed by the Secretary, in the space after the
words Document Identification # the words, minor under
age 18.

(D)

Special rule for
individuals with disabilities

Notwithstanding subparagraph (B),
an individual with a disability (as defined in section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102)) who is unable to produce an
identity document described in clause (i) through (v) of subparagraph (B), and
who is being placed into employment by a nonprofit organization or association
or as part of a rehabilitation program, and an individual who demonstrates
mental retardation whether or not the individual participates in an employment
placement program through a nonprofit organization or association or as part of
a rehabilitation program, is exempt from producing such a document if—

(i)

a
parent or legal guardian of the individual, or a representative from the
nonprofit organization, association, or rehabilitation program placing the
individual into a position of employment completes a form prescribed by the
Secretary, and in the space for the covered individual’s signature, writes the
words, special placement;

(ii)

a
parent or legal guardian of the individual or the program representative,
completes a form prescribed by the Secretary, the Preparer/Translator
certification; and

(iii)

the employer of
the covered individual writes in a form prescribed by the Secretary, in the
space after the words Document Identification # the words,
special placement.

(E)

Authority to
prohibit use of certain documents

(i)

Authority

If
the Secretary finds that a document or class of documents described in clause
(i) through (v) of subparagraph (B) is not reliable to establish identity or
eligibility for employment (as the case may be) or is being used fraudulently
to an unacceptable degree, the Secretary is authorized to prohibit, or impose
conditions on, the use of such document or class of documents for purposes of
this subsection.

(ii)

Requirement for
publication

The Secretary shall publish notice of any findings
under clause (i) in the Federal Register.

(2)

Attestation of
individual

(A)

In
general

The individual shall attest, under penalty of perjury on
a form prescribed by the Secretary, that the individual is—

(i)

a
national of the United States;

(ii)

an alien lawfully
admitted for permanent residence; or

(iii)

an alien who is
authorized under this Act or by the Secretary to be employed in the United
States.

(B)

Signature for
examination

An attestation required by subparagraph (A) may be
manifested by a handwritten or electronic signature.

(C)

Penalties

An
individual who falsely represents that the individual is eligible for
employment in the United States in an attestation required by subparagraph (A)
shall, for each such violation, be subject to a fine of not more than $5,000, a
term of imprisonment not to exceed 3 years, or both.

(3)

Retention of
attestation

The employer shall retain an attestation described in
paragraph (1) or (2) for an individual, either in electronic, paper,
microfiche, or microfilm form, and make such attestations available for
inspection by an officer of the Department of Homeland Security, any other
person designated by the Secretary, the Special Counsel for Immigration-Related
Unfair Employment Practices of the Department of Justice, or the Secretary of
Labor—

(A)

during a period
beginning on the date of the hiring of the individual and ending on the date
that is the later of—

(i)

3
years after the date of such hiring; or

(ii)

1
year after the date the individual’s employment is terminated; or

(B)

during a shorter
period determined by the Secretary, if the Secretary reduces the period
described in subparagraph (A) for the employer or a class of employers that
includes the employer.

(4)

Document
retention and recordkeeping requirements

(A)

Retention of
documents

Notwithstanding any other provision of law, an employer
shall retain, for the applicable period described in paragraph (3), the
following documents:

(i)

In
general

A paper, microfiche, microfilm, or electronic copy of
each document described in paragraph (1)(B) presented by an individual that is
designated as a copied document.

(ii)

Other
documents

A record of any action taken, and copies of any
correspondence written or received, with respect to the verification of an
individual's identity or eligibility for employment in the United States,
including records received through the Electronic Employment Verification
System under subsection (c).

(B)

Use of retained
documents

An employer shall use copies retained under clause (i)
or (ii) of subparagraph (A) only for the purposes of complying with the
requirements of this subsection, except as otherwise permitted under
law.

(5)

Penalties

An
employer that fails to comply with the requirement of this subsection shall be
subject to the penalties described in subsection (d)(4)(B).

(c)

Electronic
Employment Verification System

(1)

Requirement for
System

The Secretary, in cooperation with the Commissioner of
Social Security, shall implement an Electronic Employment Verification System
(referred to in this subsection as the System) as described in
this subsection.

(2)

Technology
standard to verify employment eligibility

(A)

In
general

The Secretary based upon recommendations from the
Director of the National Institute of Standards and Technology, shall not later
than 180 days after the date of the enactment of the STRIVE Act of 2007 develop
and certify a technology standard as described in this subparagraph. The
Secretary shall have discretion to extend the 180-day period if the Secretary
determines that such extension will result in substantial improvement of the
System.

(B)

Integrated

Notwithstanding
any other provision of Federal law, the technology standard developed shall be
the technological basis for a cross-agency, cross-platform electronic system
that is a cost-effective, efficient, fully integrated means to share
immigration and Social Security information necessary to confirm the employment
eligibility of all individuals seeking employment.

(C)

Report

Not
later than 18 months after the date of the enactment of the STRIVE Act of 2007,
the Secretary and the Director of the National Institute of Standards and
Technology shall jointly submit to Congress a report describing the
development, implementation, efficacy, and privacy implications of the
technology standard and the System.

(3)

Identity and
employment eligibility verification

An employer shall verify the
identity and eligibility for employment of an individual hired by the employer
through the System as follows:

(A)

Initial
inquiry

The employer shall submit an inquiry through the System
to seek confirmation of the individual's identity and eligibility for
employment in the United States not later than 5 working days after the date
such employment actually commences.

(B)

Initial
determination

The Secretary, through the System, shall respond to
an inquiry described in subparagraph (A) not later than 1 working day after
such inquiry is submitted. Such response shall be a determination that—

(i)

confirms the
individual’s identity and eligibility for employment in the United States;
or

(ii)

the System is
tentatively unable to confirm the individual’s identity or eligibility for
employment (referred to in this section as a tentative
nonconfirmation).

(C)

Manual
verification

(i)

Requirement

If
the System provides a tentative nonconfirmation with respect to an individual,
the Secretary shall—

(I)

provide the
individual an opportunity to submit information to verify the individual's
identity and eligibility for employment as described in subparagraph (D);
and

(II)

conduct a manual
verification to determine the individual’s identity and eligibility for
employment.

(ii)

Determination

Not
later than 30 days after the last day that an individual may submit information
under subparagraph (D) the Secretary, through the System, shall provide to the
employer the results of the manual verification required by clause (i). Such
results shall be a determination that—

(I)

confirms the
individual’s identity and eligibility for employment in the United States;
or

(II)

the System is
unable to confirm the individual’s identity or eligibility for employment
(referred to in this section as a final nonconfirmation).

(D)

Submission of
information

An individual who is the subject of a tentative
nonconfirmation may submit to the Secretary, through the System, information to
confirm such individual's identity or eligibility for employment or to
otherwise contest such tentative nonconfirmation not later that 15 days after
the individual receives notice of such tentative nonconfirmation.

(E)

Extension

The
15-day period referred to in subparagraph (D) may be extended by the Secretary
for good cause at the request of the individual.

(F)

Default
confirmation and revocation

If the Secretary, through the System,
fails to provide a determination described in clause (i) or (ii) of
subparagraph (B) or subclause (I) or (II) of subparagraph (C)(ii) for an
individual within the period described in such subparagraph, the Secretary
shall, through the System, deem that the individual's identity and eligibility
for employment are confirmed through the System and provide notice of such
confirmation to the employer.

(G)

Revocation

In
the case of a default confirmation in subclause (F), the Secretary reserves the
right to revoke such default confirmation if the Secretary later determines the
individual is, in fact, not eligible to work. The Secretary shall provide
notice of such revocation and final nonconfirmation to the employer. The
individual shall have the right to administrative review under paragraph (19)
and judicial review under paragraph (20) of such final nonconfirmation.

(H)

Prohibitiion on
termination for tentative nonconfirmation

An employer may not
terminate the employment of an individual based on tentative
nonconfirmation.

(I)

Termination of
employee

If an employer receives a final nonconfirmation with
respect to an individual, the employer shall terminate the employment of such
individual.

(J)

Administrative
and judicial review

If the Secretary, through the System,
provides a final nonconfirmation with respect to an individual, the individual
shall have the right to administrative review under paragraph (19) and judicial
review under paragraph (20) of such final nonconfirmation.

(K)

Right to review
and correct system information

The Secretary, in consultation
with the Commissioner of Social Security, shall establish procedures to permit
an individual to verify the individual's eligibility for employment in the
United States prior to obtaining or changing employment, to view the
individual’s own records in the System in order to ensure the accuracy of such
records, and to correct or update the information used by the System regarding
the individual.

(L)

Reverification

(i)

In
general

It is an unfair immigration-related employment practice
under section 274B for an employer to reverify an individual’s identity and
employment eligibility unless—

(I)

the individual's
work authorization expires as described in section 274a.2(b)(1)(vii) of title
8, Code of Federal Regulation or a subsequent similar regulation, in which
case—

(aa)

not later than 30
days prior to the expiration of the individual's work authorization, the
Secretary shall notify the employer of such expiration and of the employer's
need to reverify the individual's employment eligibility; and

(bb)

the individual
may present, and the employer shall accept, a receipt for the application for a
replacement document, extension of work authorization, or a document described
in clause (i) through (v) of subparagraph (B) of subsection (b)(1) in lieu of
the required document by the expiration date in order to comply with any
requirement to examine documentation imposed by this section, and the
individual shall present the required document within 90 days from the date the
employment authorization expires. If the actual document or replacement
document is to be issued by United States Citizenship and Immigration Services
and the application is still under review 60 days after the employment
authorization expiration date, United States Citizenship and Immigration
Services shall by the 60th day after the expiration date of the employment
authorization, issue a letter for the applicant to take to the employer which
shall automatically grant the individual an additional 90 days to present the
document or replacement document; and

(II)

the employer has
actual or constructive knowledge that the individual is not authorized to work
in the United States; or

(III)

unless otherwise
required by law.

(ii)

Continuing
employment

An employer may not verify an individual’s employment
eligibility if the individual is continuing in his or her employment as
described in section 274a.2(b)(1)(viii) of title 8, Code of Federal Regulation
or any subsequent similar regulation.

(iii)

Special rule
for critical infrastructure

Upon the implementation of the
System, the Secretary shall require all agencies and departments of the United
States (including the Armed Forces), a State government (including a State
employment agency before making a referral), or any other employer if it
employs individuals working in a location that is a Federal, State, or local
government building, a military base, a nuclear energy site, a weapon site, or
an airport, to complete a one time reverification of all individuals current
employed at these facilities.

(4)

Design and
operation of system

The Secretary, in consultation with the
Commissioner of Social Security, shall design and operate the System—

(A)

to maximize
reliability and ease of use by employers in a manner that protects and
maintains the privacy and security of the information maintained in the
System;

(B)

to permit an
employer to submit an inquiry to the System through the Internet or other
electronic media or over a telephone line;

(C)

to respond to each
inquiry made by an employer;

(D)

to maintain a
record of each such inquiry and each such response;

(E)

to track and
record any occurrence when the System is unable to receive such an
inquiry;

(F)

to include
appropriate administrative, technical, and physical safeguards to prevent
unauthorized disclosure of personal information during use, transmission,
storage, or disposal of that information, including the use of encryption,
carrying out periodic testing of the System to detect, prevent, and respond to
vulnerabilities or other failures, and utilizing periodic security
updates;

(G)

to allow for
monitoring of the use of the System and provide an audit capability;

(H)

to have reasonable
safeguards, developed in consultation with the Attorney General, to prevent
employers from engaging in unlawful discriminatory practices;

(I)

to permit an
employer to submit the attestations required by subsection (b); and

(J)

to permit an
employer to utilize any technology that is consistent with this section and
with any regulation or guidance from the Secretary to streamline the procedures
to comply with the attestation and employment eligibility verification
requirements contained in this section.

(5)

Limitation on
data elements stored

The System and any databases created by the
Commissioner of Social Security or the Secretary for use in the System shall
store only the minimum data about each individual for whom an inquiry was made
through the System to facilitate the successful operation of the System, and in
no case shall the data stored be other than—

(A)

the individual’s
full legal name;

(B)

the individual’s
date of birth;

(C)

the individual’s
social security account number or employment authorization status
identification number;

(D)

the address of the
employer making the inquiry and the dates of any prior inquiries concerning the
identity and authorization of the individual by the employer or any other
employer and the address of such employer;

(E)

a record of each
prior determination regarding the individual's identity and employment
eligibility issued through the System; and

(F)

in the case of the
individual who successfully contested or appealed a tentative nonconfirmation
or final nonconfirmation, explanatory information concerning the successful
resolution of any erroneous data or confusion regarding the identity or
eligibility for employment of the individual, including the source of that
error.

(6)

Responsibilities
of the Commissioner of Social Security

The Commissioner of Social
Security shall establish a reliable, secure method to provide through the
System, within the time periods required by subparagraphs (B) and (C) of
paragraph (2)—

(A)

a determination of
whether the name and social security account number provided, with respect to
an individual, in an inquiry by an employer, match such information maintained
by the Commissioner in order to confirm the validity of the information
provided;

(B)

a determination of
whether such social security account number was issued to the
individual;

(C)

a determination of
whether such social security account number is valid for employment in the
United States; and

(D)

a determination
described in subparagraph (B) or (C) of paragraph (2), in a manner that ensures
that other information maintained by the Commissioner is not disclosed or
released to employers through the System.

(7)

Responsibilities
of the Secretary

The Secretary shall establish a reliable, secure
method to provide, through the System, within the time periods required by
subparagraphs (B) and (C) of paragraph (2)—

(A)

a determination of
whether the name and alien identification or authorization number provided,
with respect to an individual, in an inquiry by an employer match such
information maintained by the Secretary in order to confirm the validity of the
information provided;

(B)

a determination of
whether such number was issued to the individual;

(C)

a determination of
whether the individual is authorized to be employed in the United States;
and

(D)

any other related
information that the Secretary determines is appropriate.

(8)

Privacy impact
assessment

The Commissioner of Social Security and the Secretary
shall each complete a privacy impact assessment as described in section 208 of
the E-Government Act of 2002 (Public Law 107–347; 44 U.S.C. 3501 note) with
regard to the System.

(9)

Training

The
Commissioner of Social Security and the Secretary shall provide appropriate
training materials to employers participating in the System to ensure that such
employers are able to utilize the System in compliance with the requirements of
this section.

(10)

Hotline

The
Secretary shall establish a fully staffed 24-hour hotline that shall receive
inquiries from individuals or employers concerning determinations made by the
System and shall identify for an individual, at the time of inquiry, the
particular data that resulted in a determination that the System was unable to
verify the individual's identity or eligibility for employment.

(11)

Participation

(A)

Requirements for
participation

Except as provided in subparagraphs (D) and (E),
the Secretary shall require employers to participate in the System as
follows:

(i)

Critical
employers

Not later than 1 year after the date of enactment of
the STRIVE Act of 2007, the Secretary shall require all agencies and
departments of the United States (including the Armed Forces), a State
government (including a State employment agency before making a referral), or
any other employer if it employs individuals working in a location that is a
Federal, State, or local government building, a military base, a nuclear energy
site, a weapon site, or an airport, but only to the extent of such individuals,
to participate in the System, with respect to all individuals hired after the
date the Secretary requires such participation.

(ii)

Large
employers

Not later than 2 years after the date of enactment of
the STRIVE Act of 2007 the Secretary shall require an employer with 5,000 or
more employees in the United States to participate in the System, with respect
to all employees hired by the employer after the date the Secretary requires
such participation.

(iii)

Mid-sized
employers

Not later than 3 years after the date of enactment of
the STRIVE Act of 2007 the Secretary shall require an employer with less than
5,000 employees and 1,000 or more employees in the United States to participate
in the System, with respect to all employees hired by the employer after the
date the Secretary requires such participation.

(iv)

Small
employers

Not later than 4 years after the date of the enactment
of the STRIVE Act of 2007, the Secretary shall require all employers with less
than 1,000 employees in the United States to participate in the System, with
respect to all employees hired by the employer after the date the Secretary
requires such participation.

(B)

Requirement to
publish

The Secretary shall publish in the Federal Register the
requirements for participation in the System for employers described in clauses
(i) through (iv) of subparagraph (A) prior to the effective date of such
requirements.

(C)

Other
participation in system

(i)

Voluntary
participation

Notwithstanding subparagraph (A), the Secretary has
the authority to permit any employer that is not required to participate in the
System under subparagraph (A) to participate in the System on a voluntary
basis.

(ii)

Employers not
required to participate

Notwithstanding subparagraph (A)
employers are not required to verify the identify or employment eligibility
through the System for—

(I)

an individual
performing casual employment for the employer and who provides domestic service
in a private home that is sporadic, irregular, or intermittent;

(II)

a worker provided
to the employer by a person providing contract services, such as a temporary
agency; or

(III)

an independent
contractor, performing services for the employer.

(iii)

Relationship to
other requirements

Nothing in clause (ii) may be construed to
effect the requirements for the contracting party who employs a worker referred
to in subclause (II) of such clause or an employer of an independent contractor
referred to in subclause (III) of such clause to participate in the System with
respect to such worker or independent contractor under this subsection.

(D)

Waiver

(i)

Authority to
provide a waiver

The Secretary is authorized to waive or delay
the participation requirements of subparagraph (A) with respect to any employer
or class of employers if the Secretary provides notice to Congress of such
waiver prior to the date such waiver is granted.

(ii)

Requirement to
provide a waiver

The Secretary shall waive or delay the
participation requirements of subparagraph (A) with respect to any employer or
class of employers until the date that the Comptroller General of the United
States submits the initial certification described in paragraph (17)(E) and
shall waive or delay such participation during a year if the Comptroller
General fails to submit a certification of paragraph (17)(E) for such
year.

(E)

Consequence of
failure to participate

If an employer is required to participate
in the System and fails to comply with the requirements of the System with
respect to an individual—

(i)

such failure shall
be treated as a violation of subsection (a)(1)(B); and

(ii)

a
rebuttable presumption is created that the employer has violated subsection
(a)(1)(A), however, such presumption may not apply to a prosecution under
subsection (e)(1).

(12)

Employer
requirements

(A)

In
general

An employer that participates in the System, with respect
to the hiring of an individual for employment in the United States,
shall—

(i)

notify the
individual of the use of the System and that the System may be used for
immigration enforcement purposes;

(ii)

obtain from the
individual the documents required by subsection (b)(1) and record on the form
designated by the Secretary—

(I)

the individual's
social security account number; and

(II)

in the case of an
individual who does not attest that the individual is a national of the United
States under subsection (b)(2), such identification or authorization number
that the Secretary shall require;

(iii)

retain such form
in electronic, paper, microfilm, or microfiche form and make such form
available for inspection for the periods and in the manner described in
subsection (b)(3); and

(iv)

safeguard any
information collected for purposes of the System and protect any means of
access to such information to ensure that such information is not used for any
purpose other than to determine the identity and employment eligibility of the
individual and to protect the confidentiality of such information, including
ensuring that such information is not provided to any person other than a
person that carries out the employer’s responsibilities under this
subsection.

(B)

Schedule

(i)

Replacement
documents

An employer shall accept a receipt for the application
for a replacement document or a document described in subparagraph (B) of
subsection (b)(1) in lieu of the required document in order to comply with any
requirement to examine documentation imposed by this section, in the following
circumstances:

(I)

The individual is
unable to provide the required document within the time specified in this
section because the document was lost, stolen, or damaged.

(II)

The individual
presents a receipt for the application for the document within the time
specified in this section.

(III)

The individual
presents the document within 90 days of the hire. If the actual document or
replacement document is to be issued by the United States Citizenship and
Immigration Services and the application is still under review 60 days after
receipt of the application, United States Citizenship and Immigration Services
shall, not later than the 60th day after receipt of the application, issue a
letter for the applicant to take to the employer which shall automatically
grant the individual an additional 90 days from the original deadline in
subsection (b)(6)(A)(i)(II) to present the document or replacement document;
and

(ii)

Prohibition on
acceptance of a receipt for short-term employment

An employer may
not accept a receipt in lieu of the required document if the individual is
hired for a duration of less than 10 working days.

(C)

Confirmation or
nonconfirmation

(i)

Retention

If
an employer receives a determination through the System under paragraph (3) for
an individual, the employer shall retain either an electronic, paper, or
microfiche form record of such confirmation for the period required by
subsection (b)(4)(A).

(ii)

Nonconfirmation
and verification

(I)

Nonconfirmation

If
an employer receives a tentative nonconfirmation with respect to an individual,
the employer shall retain either an electronic or paper record of such
nonconfirmation for the period required by subsection (b)(4)(A) and inform such
individual not later than 10 working days after the issuance of such notice in
the manner prescribed by the Secretary that includes information regarding the
individual's right to submit information to contest the tentative
nonconfirmation under paragraph (2)(D) and the address and telephone numbers
established by the Commissioner and the Secretary to obtain information on how
to submit such information.

(II)

No
contest

If the individual does not contest the tentative
nonconfirmation notice within 15 working days of receiving notice from the
individual's employer, the notice shall become final and the employer shall
retain either an electronic or paper record of such final nonconfirmation for
the period required by subsection (b)(4)(A). An individual’s failure to contest
a tentative nonconfirmation may not be the basis for determining that the
employer acted in a knowing (as defined in section 274a.1 of title 8, Code of
Federal Regulations, or any corresponding similar regulation) manner.

(III)

Contest

If
the individual contests the tentative nonconfirmation notice under subclause
(I), the individual shall submit appropriate information to contest such notice
to the System within 15 working days of receiving notice from the individual's
employer and shall utilize the verification process developed under paragraph
(2)(C)(ii). Such individual shall acknowledge receipt of such notice in
writing.

(IV)

Effective
period of tentative nonconfirmation

A tentative nonconfirmation
notice shall remain in effect until such notice becomes final under clause (II)
or a final confirmation notice or final nonconfirmation notice is issued by the
System.

(V)

Prohibition

An
employer may not terminate the employment of an individual based on a tentative
nonconfirmation notice until such notice becomes final under clause (II) or a
final nonconfirmation notice is issued for the individual by the System.
Nothing in this clause shall apply to termination of employment for any reason
other than because of such a tentative nonconfirmation.

(VI)

Recording of
conclusion on form

If a final confirmation or nonconfirmation is
provided by the System regarding an individual, the employer shall record on
the form designated by the Secretary the appropriate code that is provided
under the System to indicate a confirmation or nonconfirmation of the identity
and employment eligibility of the individual.

(D)

Consequences of
nonconfirmation

If an employer has received a final
nonconfirmation with respect to an individual, the employer shall terminate the
employment of the individual. If the employer continues to employ the
individual after receiving final nonconfirmation, a rebuttable presumption is
created that the employer has violated paragraphs (1)(A) and (2) of subsection
(a). Such presumption may not apply to a prosecution under subsection
(e)(1).

(13)

Prohibition of
unlawful accessing and obtaining of information

(A)

In
general

It shall be unlawful for any individual other than an
employee of the Social Security Administration or the Department of Homeland
Security specifically charged with maintaining the System to intentionally and
knowingly—

(i)

access the System
or the databases utilized to verify identity or employment eligibility for the
System for any purpose other than verifying identity or employment eligibility
or modifying the System pursuant to law or regulation; or

(ii)

obtain the
information concerning an individual stored in the System or the databases
utilized to verify identity or employment eligibility for the System for any
purpose other than verifying identity or employment authorization or modifying
the System pursuant to law or regulation.

(B)

Penalties

(i)

Unlawful
access

Any individual who unlawfully accesses the System or the
databases as described in subparagraph (A)(i) shall be fined no more than
$1,000 per individual or sentenced to no more than 6 months imprisonment or
both per individual whose file was compromised.

(ii)

Unlawful
use

Any individual who unlawfully obtains information stored in
the System in the database utilized to verify identity or employment
eligibility for the System and uses the information to commit identity theft
for financial gain or to evade security or to assist another in gaining
financially or evading security, shall be fined no more than $10,000 per
individual or sentenced to no more than 1 year of imprisonment or both per
individual whose information was obtained and misappropriated.

(14)

Protection from
liability

No employer that participates in the System and
complies in good faith with the attestation in subsection (b)(1) shall be
liable under any law for any employment-related action taken with respect to an
individual in good faith reliance on information provided by the System
regarding that individual.

(15)

Limitation on
use of the System

Notwithstanding any other provision of law,
nothing in this subsection shall be construed to permit or allow any
department, bureau, or other agency of the United States to utilize any
information, database, or other records used in the System for any purpose
other than as provided for under this subsection.

(16)

Access to
database

No officer or employee of any agency or department of
the United States, other than such an officer or employee who is responsible
for the verification of employment eligibility or for the evaluation of an
employment eligibility verification program at the Social Security
Administration, the Department of Homeland Security, and the Department of
Labor, may have access to any information, database, or other records utilized
by the System.

(17)

Modification
authority

The Secretary, after notice is submitted to Congress
and provided to the public in the Federal Register, is authorized to modify the
requirements of this subsection, including requirements with respect to
completion of forms, method of storage, attestations, copying of documents,
signatures, methods of transmitting information, and other operational and
technical aspects to improve the efficiency, accuracy, and security of the
System.

(18)

Annual study
and report

(A)

Requirement for
study

The Comptroller General of the United States shall conduct
an annual study of the System as described in this paragraph.

(B)

Purpose of the
study

The Comptroller General shall, for each year, undertake a
study to determine whether the System meets the following requirements:

(i)

Demonstrated
accuracy of the databases

New information and information changes
submitted by an individual to the System is updated in all of the relevant
databases not later than 3 working days after submission in at least 99 percent
of all cases.

(ii)

Low error rates
and delays in verification

(I)

Incorrect
tentative nonconfirmation notices

That, during a year, not more
than 1 percent of all tentative nonconfirmations provided through the System
during such year are incorrect.

(II)

Incorrect final
nonconfirmation notices

That, during a year, not more than 3
percent of all final nonconfirmations provided through the System during such
year are incorrect.

(III)

Rates of
incorrect tentative nonconfirmation notices

That, during a year,
the number of incorrect tentative nonconfirmations provided through the System
for individuals who are not nationals of the United States is not more than 300
percent more than the number of such incorrect notices provided for nationals
of the United States.

(IV)

Rates of
incorrect final nonconfirmation notices

That, during a year, the
number of incorrect final nonconfirmations provided through the System for
individuals who are not nationals of the United States is not more than 300
percent more than the number of such incorrect notices provided for nationals
of the United States during such year.

(iii)

Measurable
employer compliance with System requirements

(I)

No
discrimination based on system operations

The System has not and
will not result in increased discrimination or cause reasonable employers to
conclude that individuals of certain races or ethnicities are more likely to
have difficulties when offered employment caused by the operation of the
System.

(II)

Requirement for
independent study

The determination described in subclause (I)
shall be based on an independent study commissioned by the Comptroller General
in each phase of expansion of the System.

(iv)

Protection of
workers’ private information

At least 97 percent of employers who
participate in the System are in full compliance with the privacy requirements
described in this subsection.

(v)

Adequate agency
staffing and funding

The Secretary and Commissioner of Social
Security have sufficient funding to meet all of the deadlines and requirements
of this subsection.

(C)

Consultation

In
conducting a study under this paragraph, the Comptroller General shall consult
with representatives of business, labor, immigrant communities, State
governments, privacy advocates, and appropriate departments of the United
States.

(D)

Requirement for
reports

Not later than 21 months after the date of the enactment
of the STRIVE Act of 2007, and annually thereafter, the Comptroller General
shall submit to the Secretary and to Congress a report containing the findings
of the study carried out under this paragraph.

(E)

Certification

If
the Comptroller General determines that the System meets the requirements set
out in clauses (i) through (v) of subparagraph (B) for a year, the Comptroller
shall certify such determination and submit such certification to Congress with
the report required by subparagraph (D).

(19)

Administrative
review

(A)

In
general

An individual who is terminated from employment as a
result of a final nonconfirmation may, not later than 60 days after the date of
such termination, file an appeal of such final nonconfirmation.

(B)

Procedures

The
Secretary and Commissioner of Social Security shall develop procedures to
review appeals filed under subparagraph (A) and to make final determinations on
such appeals.

(C)

Review for
errors

If a final determination on an appeal filed under
subparagraph (A) results in a confirmation of an individual's eligibility for
employment in the United States, the administrative review process shall
require the Secretary to determine if the final nonconfirmation issued for the
individual was the result of—

(i)

an
error or negligence on the part of an employee or official operating or
responsible for the System;

(ii)

the decision
rules, processes, or procedures utilized by the System; or

(iii)

erroneous system
information that was not the result of acts or omissions of the
individual.

(D)

Compensation for
error

(i)

In
general

If the Secretary makes a determination under subparagraph
(C) that the final nonconfirmation issued for an individual was not caused by
an act or omission of the individual, the Secretary shall compensate the
individual for lost wages.

(ii)

Calculation of
lost wages

Lost wages shall be calculated based on the wage rate
and work schedule that prevailed prior to termination. The individual shall be
compensated for wages lost beginning on the first scheduled work day after
employment was terminated and ending 180 days after completion of the
administrative review process described in this paragraph or the day after the
individual is reinstated or obtains employment elsewhere, whichever occurs
first.

(E)

Limitation on
compensation

For purposes of determining an individual's
compensation for the loss of employment, such compensation shall not include
any period in which the individual was ineligible for employment in the United
States.

(F)

Source of
funds

Compensation or reimbursement provided under this paragraph
shall not be provided from funds appropriated in annual appropriations Acts to
the Secretary for the Department of Homeland Security.

(20)

Judicial
review

(A)

In
general

After the Secretary makes a final determination on an
appeal filed by an individual under paragraph (19), the individual may obtain
judicial review of such determination in a civil action commenced not later
than 90 days after notice of such decision, or such further time as the
Secretary may allow.

(B)

Report

Not
later than 180 days after the date of enactment of the STRIVE Act of 2007, the
Director of the Federal Judicial Center shall submit to Congress a report on
judicial review of an administrative decision on a final nonconfirmation. The
report shall contain recommendations on jurisdiction and procedures that shall
be instituted to seek adequate and timely review of such decision.

(C)

Compensation for
error

(i)

In
general

In cases in which such judicial review reverses the final
determination of the Secretary made under paragraph (19), the court shall
compensate the individual for lost wages.

(ii)

Calculation of
lost wages

Lost wages shall be calculated based on the wage rate
and work schedule that prevailed prior to termination. The individual shall be
compensated for wages lost beginning on the first scheduled work day after
employment was terminated and ending 180 days after completion of the judicial
review described in this paragraph or the day after the individual is
reinstated or obtains employment elsewhere, whichever occurs first.

(21)

Enforcement of
violations

No private right of action shall exist for any claim
based on a violation of this section. The Government of the United States shall
have exclusive enforcement authority over violations of this section and shall
use only the powers, penalties, and mechanisms found in this section. This
paragraph shall apply to all cases in which a final judgment has not been
entered prior to or on the date of enactment of the STRIVE Act of 2007.

(22)

Safe harbor for
contractors

A person shall not be liable for a violation of
paragraph (1)(A), (1)(B), or (2) of subsection (a) with respect to the hiring
or continuation of employment of an unauthorized alien by a subcontractor of
that person unless the person knew that the subcontractor hired or continued to
employ such alien in violation of such a paragraph.

(23)

Statutory
construction

Nothing in this subsection shall affect any existing
rights and obligations of employers or employees under other Federal, State, or
local laws.

(d)

Compliance

(1)

Complaints and
investigations

The Secretary shall establish procedures—

(A)

for a person to
file a complaint regarding a potential violation of paragraph (1)(A), (1)(B),
or (2) of subsection (a);

(B)

for the
investigation of any such complaint that the Secretary determines is
appropriate to investigate; and

(C)

for the
investigation of such other violation of paragraph (1)(A), (1)(B), or (2) of
subsection (a) that the Secretary determines is appropriate.

(2)

Authority in
investigations

(A)

In
general

In conducting investigations and hearings under this
subsection, officers and employees of the Department of Homeland Security, if
designated by the Secretary, may compel by subpoena the attendance of witnesses
and the production of evidence at any designated place in an investigation or
case under this subsection.

(B)

Failure to
cooperate

In case of refusal to obey a subpoena lawfully issued
under subparagraph (A), the Secretary may request that the Attorney General
apply in an appropriate district court of the United States for an order
requiring compliance with such subpoena, and any failure to obey such order may
be punished by such court as contempt.

(C)

Department of
Labor

The Secretary of Labor shall have the investigative
authority provided under section 11(a) of the Fair Labor Standards Act of 1938
(29 U.S.C. 211(a)) to ensure compliance with the provisions of this section, or
any regulation or order issued under this section.

(3)

Compliance
procedures

(A)

Prepenalty
notice

If the Secretary has reasonable cause to believe that
there has been a violation of a requirement of this section and determines that
further proceedings related to such violation are warranted, the Secretary
shall issue to the employer concerned a written notice of the Secretary's
intention to issue a claim for a fine or other penalty. Such notice
shall—

(i)

describe the
violation;

(ii)

specify the laws
and regulations allegedly violated;

(iii)

disclose the
material facts which establish the alleged violation; and

(iv)

inform such
employer that the employer shall have a reasonable opportunity to make
representations as to why a claim for a monetary or other penalty should not be
imposed.

(B)

Remission or
mitigation of penalties

(i)

Petition by
employer

If an employer receives written notice of a fine or
other penalty in accordance with subparagraph (A), the employer may file within
45 days from receipt of such notice, with the Secretary a petition for the
remission or mitigation of such fine or penalty, or a petition for termination
of the proceedings. The petition may include any relevant evidence or proffer
of evidence the employer wishes to present, and shall be filed and considered
in accordance with procedures to be established by the Secretary.

(ii)

Review by
Secretary

If the Secretary finds that such fine or other penalty
was incurred erroneously, or finds the existence of such mitigating
circumstances as to justify the remission or mitigation of such fine or
penalty, the Secretary may remit or mitigate such fine or other penalty on the
terms and conditions as the Secretary determines are reasonable and just, or
order termination of any proceedings related to the notice. Such mitigating
circumstances may include good faith compliance and participation in, or
agreement to participate in, the System, if not otherwise required.

(iii)

Applicability

This
subparagraph may not apply to an employer that has or is engaged in a pattern
or practice of violations of paragraph (1)(A), (1)(B), or (2) of subsection (a)
or of any other requirements of this section.

(C)

Penalty
claim

After considering evidence and representations offered by
the employer pursuant to subparagraph (B), the Secretary shall determine
whether there was a violation and promptly issue a written final determination
setting forth the findings of fact and conclusions of law on which the
determination is based and the appropriate penalty.

Pay a civil
penalty of not less than $500 and not more than $4,000 for each unauthorized
alien with respect to each such violation.

(ii)

If the employer
has previously been fined 1 time within the preceding 12 months under this
subparagraph, pay a civil penalty of not less than $4,000 and not more than
$10,000 for each unauthorized alien with respect to each such violation.

(iii)

If the employer
has previously been fined more than 1 time within the preceding 12 months under
this subparagraph or has failed to comply with a previously issued and final
order related to any such provision, pay a civil penalty of not less than
$6,000 and not more than $20,000 for each unauthorized alien with respect to
each such violation.

(B)

Record keeping
or verification practices

Any employer that violates or fails to
comply with paragraph (1)(B) of subsection (a) shall pay a civil penalty as
follows:

(i)

Pay a civil
penalty of not less than $200 and not more than $2,000 for each such violation
or failure.

(ii)

If the employer
has previously been fined 1 time within the preceding 12 months under this
subparagraph, pay a civil penalty of not less than $400 and not more than
$4,000 for each such violation of failure.

(iii)

If the employer
has previously been fined more than 1 time within the preceding 12 months under
this subparagraph or has failed to comply with a previously issued and final
order related to such requirements, pay a civil penalty of $6,000 for each such
violation or failure.

(iv)

Special rule
governing paperwork violation

In the case where an employer
commits a violation of this section that is deemed to be purely a paperwork
violation where the Secretary fails to establish any intent to hire an
individual who is not unauthorized for employment in the United States, the
Secretary shall permit the employer to correct such paperwork error within 30
days of receiving notice from the Secretary of such violation.

(C)

Other
penalties

Notwithstanding subparagraphs (A) and (B), the
Secretary may impose additional penalties for violations, including cease and
desist orders, specially designed compliance plans to prevent further
violations, suspended fines to take effect in the event of a further violation,
and in appropriate cases, the civil penalty described in subsection
(f)(2).

(D)

Reduction of
penalties

Notwithstanding subparagraphs (A), (B), and (C), the
Secretary is authorized to reduce or mitigate penalties imposed upon employers,
based upon factors including the employer's hiring volume, compliance history,
good-faith implementation of a compliance program, participation in a temporary
worker program, and voluntary disclosure of violations of this subsection to
the Secretary.

(5)

Judicial
review

(A)

In
general

An employer adversely affected by a final determination
may, within 45 days after the date the final determination is issued, obtain
judicial review of such determination.

(B)

Report

Not
later than 180 days after the date of enactment of the STRIVE Act of 2007, the
Director of the Federal Judicial Center shall submit to Congress a report on
judicial review of a final determination. The report shall contain
recommendations on jurisdiction and procedures that shall be instituted to seek
adequate and timely review of such decision.

(6)

Enforcement of
orders

If an employer fails to comply with a final determination
issued against that employer under this subsection, and the final determination
is not subject to review as provided in paragraph (5), the Attorney General may
file suit to enforce compliance with the final determination, not earlier than
46 days and not later than 90 days, after the date the final determination is
issued, in any appropriate district court of the United States. The burden
shall remain on the employer to show that the final determination was not
supported by a preponderance of the evidence.

(7)

Recovery of
costs and attorneys’ fees

In any appeal brought under paragraph
(5) or suit brought under paragraph (6), the employer shall be entitled to
recover from the Secretary reasonable costs and attorneys’ fees if such
employer prevails on the merits of the case. The award of attorneys’ fees shall
not exceed $50,000. Such amount shall be subject to annual inflation
adjustments per the United States Consumer Price Index - All Urban Consumers
(CPI-U) compiled by the Bureau of Labor Statistics. Any costs and attorneys’
fees assessed against the Secretary shall be charged against the operating
expenses of the Department of Homeland Security for the fiscal year in which
the assessment is made, and shall not be reimbursed from any other
source.

(e)

Criminal
penalties and injunctions for pattern or practice violations

(1)

Criminal
penalty

An employer that engages in a pattern or practice of
knowing violations of paragraph (1)(A) or (2) of subsection (a) shall be fined
not more than $20,000 for each unauthorized alien with respect to whom such a
violation occurs, imprisoned for not more than 3 years for the entire pattern
or practice, or both.

(2)

Enjoining of
pattern or practice violations

If the Secretary or the Attorney
General has reasonable cause to believe that an employer is engaged in a
pattern or practice of employment in violation of paragraph (1)(A) or (2) of
subsection (a), the Attorney General may bring a civil action in the
appropriate district court of the United States requesting such relief,
including a permanent or temporary injunction, restraining order, or other
order against the employer, as the Secretary deems necessary.

(f)

Adjustment for
inflation

All penalties and limitations on the recovery of costs
and attorney's fees in this section shall be increased every 4 years beginning
January 2010 to reflect the percentage increase in the consumer price index for
all urban consumers (all items; United States city average) for the 48 month
period ending with September of the year preceding the year such adjustment is
made. Any adjustment under this subparagraph shall be rounded to the nearest
dollar.

(g)

Prohibition of
indemnity bonds

(1)

Prohibition

It
is unlawful for an employer, in the hiring of an individual, to require the
individual to post a bond or security, to pay or agree to pay an amount, or
otherwise to provide a financial guaranty or indemnity, against any potential
liability arising under this section relating to such hiring of the
individual.

(2)

Civil
penalty

Any employer which is determined, after notice and
opportunity for mitigation of the monetary penalty under subsection (d), to
have violated paragraph (1) shall be subject to a civil penalty of $10,000 for
each violation and to an administrative order requiring the return of any
amounts received in violation of such paragraph to the individual.

(h)

Prohibition on
award of government contracts, grants, and agreements

(1)

Employers with
no contracts, grants, or agreements

(A)

In
general

If an employer who does not hold a Federal contract,
grant, or cooperative agreement is determined by the Secretary to be a repeat
violator of this section the employer shall be debarred from the receipt of a
Federal contract, grant, or cooperative agreement for a period of 5 years. The
Secretary or the Attorney General shall advise the Administrator of General
Services of such a debarment, and the Administrator of General Services shall
list the employer on the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs for a period of 5 years.

(B)

Waiver

The
Administrator of General Services, in consultation with the Secretary and the
Attorney General, may waive operation of this subsection or may limit the
duration or scope of the debarment.

(2)

Employers with
contracts, grants, or agreements

(A)

In
general

An employer who holds a Federal contract, grant, or
cooperative agreement and is determined by the Secretary to be a repeat
violator of this section or is convicted of a crime under this section, shall
be debarred from the receipt of new Federal contracts, grants, or cooperative
agreements for a period of 5 years.

(B)

Notice to
agencies

Prior to debarring the employer under subparagraph (A),
the Secretary, in cooperation with the Administrator of General Services, shall
advise any agency or department holding a contract, grant, or cooperative
agreement with the employer of the Government's intention to debar the employer
from the receipt of new Federal contracts, grants, or cooperative agreements
for a period of 5 years.

(C)

Waiver

After
consideration of the views of any agency or department that holds a contract,
grant, or cooperative agreement with the employer, the Secretary may, in lieu
of debarring the employer from the receipt of new Federal contracts, grants, or
cooperative agreements for a period of 5 years, waive operation of this
subsection, limit the duration or scope of the debarment, or may refer to an
appropriate lead agency the decision of whether to debar the employer, for what
duration, and under what scope in accordance with the procedures and standards
prescribed by the Federal Acquisition Regulation. However, any proposed
debarment predicated on an administrative determination of liability for civil
penalty by the Secretary or the Attorney General shall not be reviewable in any
debarment proceeding.

(D)

Review

The
decision of whether to debar or take alternate action under this paragraph
shall be reviewable pursuant to section 9, Federal Acquisition
Regulation.

(3)

Suspension

Indictments
for violations of this section or adequate evidence of actions that could form
the basis for debarment under this subsection shall be considered a cause for
suspension under the procedures and standards for suspension prescribed by the
Federal Acquisition Regulation.

(4)

Repeat violator
defined

In this subsection, the term repeat violator
means, with respect to an employer, that the employer has violated paragraph
(1)(A), (1)(B), or (2) of subsection (a) more than 1 time and that such
violations were discovered as a result of more than 1 separate investigation of
the employer. A violation of such paragraph (1)(B) that is inadvertent and
unrelated to a violation of subsection (a)(1)(A) and (a)(2) may not be
considered to be a violation of such paragraph (1)(B) for the purposes of this
paragraph.

(i)

Miscellaneous
provisions

(1)

Documentation

In
providing documentation or endorsement of authorization of aliens (other than
aliens lawfully admitted for permanent residence) eligible to be employed in
the United States, the Secretary shall provide that any limitations with
respect to the period or type of employment or employer shall be conspicuously
stated on the documentation or endorsement.

(2)

Preemption

The
provisions of this section preempt any State or local law from—

(A)

imposing civil or
criminal sanctions upon employers who employ or otherwise do business with
unauthorized aliens;

(B)

requiring,
authorizing, or permitting the use of a federally mandated employment
verification system for any other purpose other than the one mandated in
Federal law, including verifying status of renters, determining eligibility for
receipt of benefits, enrollment in school, obtaining or retaining a business
license or other license provided by the unit of government, or conducting a
background check; and

(C)

requiring
employers to use an employment verification system, unless otherwise mandated
by Federal law, for purposes such as—

(i)

as
a condition of receiving a government contract;

(ii)

as a condition of
receiving a business license; or

(iii)

as a
penalty.

(j)

Definitions

In
this section—

(1)

Employer

The
term employer means any person or entity, including any entity of
the Government of the United States, hiring an individual for employment in the
United States.

(2)

Independent
contractor

The term independent contractor includes
a person who carries on independent business, contracts to do a piece of work
according to the person's own means and methods, and are subject to control
only as to results. Whether a person is an independent contractor, regardless
of any self-designation, will be determined on a case-by-case basis. Factors to
be considered in that determination include whether the person—

(A)

supplies the tools
or materials;

(B)

makes services
available to the general public;

(C)

works for a number
of clients at the same time;

(D)

has an opportunity
for profit or loss as a result of labor or services provided;

(E)

invests in
facilities to carry out the work;

(F)

directs the order
or sequence in which the work is to be done; and

(G)

determines the
hours during which the work is to be done.

(3)

Secretary

Except
as otherwise provided, the term Secretary means the Secretary of
Homeland Security.

(4)

Unauthorized
alien

The term unauthorized alien means, with
respect to the employment of an alien at a particular time, that the alien is
not at that time either—

(A)

an alien lawfully
admitted for permanent residence; or

(B)

authorized to be
so employed by this Act or by the
Secretary.

.

(b)

Antifraud measures
for Social Security cards

(1)

In
general

Section 205(c)(2)(G)
of the Social Security Act (42 U.S.C. 405(c)(2)(G)) is amended—

(A)

by inserting
(i) after (G);

(B)

by striking
banknote paper and inserting durable plastic or similar
material; and

(C)

by adding at the
end the following new clauses:

(ii)

Each social security card issued under this
subparagraph shall include an encrypted machine-readable electronic
identification strip which shall be unique to the individual to whom the card
is issued. The Commissioner shall develop such electronic identification strip
in consultation with the Secretary of Homeland Security, so as to enable
employers to use such strip in accordance with section 274A(a)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)) to obtain access to
the Electronic Employment Verification System established by subsection (c) of
this title.

(iii)

Each social
security card issued under this subparagraph shall—

(I)

contain physical
security features designed to prevent tampering, counterfeiting, or duplication
of the card for fraudulent purposes;

(II)

be consistent
with the biometric standards for documents described in section 737 of this
Act; and

(III)

contain a
disclaimer stating the following: `This card shall not be used for the purpose
of identification.

(iv)

The Commissioner
shall provide for the issuance (or reissuance) to each individual who—

(I)

has been assigned
a Social Security account number under subparagraph (B),

(II)

has attained the
minimum age applicable, in the jurisdiction in which such individual engages in
employment, for legally engaging in such employment, and

(III)

files
application for such card under this clause in such form and manner as shall be
prescribed by the Commissioner, a Social Security card which meets the
preceding requirements of this subparagraph and which includes a recent
digitized photograph of the individual to whom the card is issued.

(v)

The Commissioner
shall maintain an ongoing effort to develop measures in relation to the Social
Security card and the issuance thereof to preclude fraudulent use
thereof.

.

(2)

Sharing of
information with the Secretary of Homeland Security

Section 205(c)(2) of such Act is amended by
adding at the end the following new subparagraph:

(I)

Upon the issuance of a Social Security
account number under subparagraph (B) to any individual or the issuance of a
Social Security card under subparagraph (G) to any individual, the Commissioner
of Social Security shall transmit to the Secretary of Homeland Security such
information received by the Commissioner in the individual's application for
such number or such card as such Secretary determines necessary and appropriate
for administration of the STRIVE Act of 2007. Such information shall be used
solely for inclusion in the Electronic Employment Eligibility Verification
System established pursuant to title III of such
Act.

.

(3)

Effective
Dates

The amendment made by
paragraph (1) shall apply with respect to Social Security cards issued 2 years
after the date of the enactment of this Act. The amendment made by paragraph
(2) shall apply with respect to the issuance of Social Security account numbers
and Social Security cards after 2 years after the date of the enactment of this
Act.

(c)

Conforming
amendments

(1)

Amendments

(A)

Repeal of basic
pilot

Sections 401, 402, 403, 404, and 405 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (division C of
Public Law 104–208; 8 U.S.C. 1324a note) are repealed.

(B)

Repeal of
reporting requirements

(i)

Report on
earnings of aliens not authorized to work

Subsection (c) of
section 290 (8 U.S.C. 1360) is repealed.

(ii)

Report on
fraudulent use of Social Security account numbers

Subsection (b)
of section 414 of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1360 note) is
repealed.

(C)

Repeal of
definition

Paragraph (1)(F) of section 1961 of title 18, United
States Code, is repealed.

(2)

Construction

Nothing
in this subsection or in subsection (c) of section 274A, as amended by
subsection (a), may be construed to limit the authority of the Secretary to
allow or continue to allow the participation of employers who participated in
the basic pilot program under such sections 401, 402, 403, 404, and 405 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C
of Public Law 104–208; 8 U.S.C. 1324a note) in the Electronic Employment
Verification System established pursuant to such subsection (d).

in subsections
(a)(6) and (g)(2)(B), by striking 274A(b) and inserting
274A(d); and

(B)

in subsection
(g)(2)(B)(ii), by striking 274A(b)(5) and inserting
274A(d)(9).

(e)

Office of
Electronic Verification

(1)

In
general

The Secretary shall establish the Office of Electronic
Verification within the Office of Screening Coordination of the
Department.

(2)

Responsibilities

The
head of the Office of Electronic Verification shall work with the Commissioner
of Social Security—

(A)

to ensure the
information maintained in the Electronic Employment Verification System
established in subsection (c) of section 274A of the Immigration and
Nationality Act, as amended by subsection (a), is updated in a manner that
promotes maximum accuracy;

(B)

to ensure a process
is provided for correcting erroneous information continued in such
System;

(C)

to ensure that the
data received from field offices of United States Customs and Border Protection
or from other points of contact between aliens and the Department of Homeland
Security is registered in all relevant databases;

(D)

to ensure that the
data received from field offices of the Social Security Administration and
other points of contact between nationals of the United States and the Social
Security Administration is registered within all relevant databases;

(E)

to ensure that the
Department has a sufficient number of personnel to conduct manual verifications
described in paragraph (2)(ii) of such subsection (c);

(F)

to establish and
promote telephone help lines accessible to employers and individuals 24-hours a
day that provide information regarding the functioning of such System or
specific issues related to the issuance of a tentative nonconfirmations issued
by the System;

(G)

to establish an
outreach and education program to ensure that all new employers are fully
informed of their responsibilities under such System;

(H)

to conduct random
audits of individual's files in the Government’s database each year to
determine accuracy rates and require corrections of errors in a timely manner;
and

(I)

to provide to the
employer anti-discrimination notices issued by the Office of Special Counsel
for Immigration-Related Unfair Employment Practices of the Civil Rights
Division of the Department of Justice.

(f)

Requirement for
reports

Not later than 2 years after the date of enactment of
this Act, and annually thereafter, the Comptroller General of the United States
shall submit to the Secretary and to Congress a report on the impact of the
Electronic Employment Verification System described in section 274A(c) of the
Immigration and Nationality Act, as amended by subsection (a), on employers and
employees in the United States. Each such report shall include the
following:

(1)

An assessment of
the impact of the System on the employment of aliens who are not eligible for
employment in the United States, including whether the System has indirectly
caused an increase in exploitation of unauthorized workers.

(2)

An assessment of
the accuracy of the databases utilized by the System and of the timeliness and
accuracy of the responses provided through the System to employers.

(3)

An assessment of
the privacy and confidentiality of the System and of the overall security of
the System with respect to cybertheft and theft or misuse of private
data.

(4)

An assessment of
whether the System is being implemented in a nondiscriminatory and
nonretaliatory manner.

(5)

An assessment of
the most common causes for the erroneous issuance of nonconfirmations by the
System and recommendations to correct such causes.

(6)

Recommendations
regarding a funding scheme for the maintenance of the System which may include
minimal costs to employers or individuals.

(7)

The
recommendations of the Comptroller General regarding whether or not the System
should be modified prior to further expansion.

(g)

Effective
date

The amendments made by subsections (a), (b), and (c) shall
take effect on the date that is 180 days after the date of the enactment of
this Act.

Section
274B(a)(1) (8 U.S.C. 1324b(a)(1)) is amended by inserting “, the verification
of the individual's eligibility for employment through the Electronic
Employment Verification System described in section 274A(c),” after the
individual for employment.

granted the
status of an alien lawfully admitted for temporary residence under section
210(a) or 245A(a);

(iii)

admitted as a
refugee under section 207;

(iv)

granted asylum
under section 208;

(v)

granted the
nonimmigrant status under section 101(a)(15)(H)(ii)(c);

(vi)

granted temporary
protected status under section 244; or

(vii)

granted parole
under section
212(d)(5).

.

(c)

Requirements for
electronic employment verification

Section 274B(a) (8 U.S.C.
1324b(a)) is amended by adding at the end the following:

(7)

Antidiscrimination
requirements of the electronic employment verification system

It
is an unfair immigration-related employment practice for a person or other
entity, in the course of the Electronic Employment Verification System
described in section 274A(c)—

(A)

to terminate the
employment of an individual due to a tentative nonconfirmation issued by such
System, with respect to that individual;

(B)

to use the System
for screening of an applicant for employment prior to making the individual an
offer of employment;

(C)

to reverify the
employment authorization of current employees beyond the time period set out in
274A(c)(2); or

(D)

to use the System
selectively to exclude certain individuals from consideration for employment as
a result of a perceived likelihood that additional verification will be
required, beyond what is required for most job
applicants.

.

(d)

Increase in
civil money penalties

Section 274B(g)(2) (8 U.S.C. 1324b(g)(2))
is amended—

(1)

in subparagraph
(B)(iv)—

(A)

in subclause (I),
by striking $250 and not more than $1,000 and inserting
$2,000 and not more than $4,000;

(B)

in subclause (II),
by striking $2,000 and not more than $5,000 and inserting
$4,000 and not more than $10,000;

(C)

in subclause
(III), by striking $3,000 and not more than $10,000 and
inserting $6,000 and not more than $20,000;

(D)

in subclause (IV),
by striking $100 and not more than $1,000 and inserting
$500 and not more than $5,000.

(e)

Increased
funding of information campaign

Section 274B(l)(3) (8 U.S.C.
1324b(l)(3)) is amended by inserting and an additional $40,000,000 for
each of fiscal years 2008 through 2010 before the period at the
end.

(f)

Effective
date

The amendments made by this title shall take effect on the
date of the enactment of this Act and shall apply to violations occurring on or
after such date.

304.

Additional
protections

Section 274B (8
U.S.C. 1324b) is amended—

(1)

in subsection (a),
by amending paragraph (1) to read as follows:

(1)

In
general

It is an unfair immigration-related employment practice
for a person or other entity to discriminate against any individual (other than
an unauthorized alien defined in section 274A(h)(3)) with respect to—

(A)

the hiring, or
recruitment or referral for a fee, of the individual for employment or the
discharging of the individual from employment—

(i)

because of such
individual’s national origin; or

(ii)

in the case of a
protected individual, because of such individual’s citizenship status;
or

(B)

the compensation,
terms, or conditions of the employment of the
individual.

;

(2)

in subsection
(a)(6), by striking if made for the purpose or with the intent of
discriminating against an individual in violation of paragraph (1) and
inserting in violation of paragraph (1), subject to additional
information and compliance assistance being provided to employers to assist
them in complying with the law;

(3)

in subsection
(d)—

(A)

in paragraph (1),
by striking and, based on such an investigation and subject to paragraph
(3), file a complaint before such a judge and inserting Any such
investigation shall begin not later than 180 days after the alleged
discriminatory act. Any such complaint filed with an administrative law judge
shall be filed not later than 1 year after the commencement of the independent
investigation.; and

(B)

by striking
paragraph (3); and

(4)

in subsection
(g)(2)(B)(iii), by inserting , and to provide such other relief as the
administrative law judge determines appropriate to make the individual
whole before the semicolon at the end.

305.

Additional
worksite enforcement and fraud detection agents

(a)

Increase in
number of personnel

The Secretary shall, subject to the
availability of appropriations for such purpose, annually increase, by not less
than 2,200, the number of personnel of the Bureau of Immigration and Customs
Enforcement during the 5-year period beginning on the date of the enactment of
this Act.

(b)

Use of
personnel

The Secretary shall ensure that not less than 25
percent of all the hours expended by personnel of the Bureau of Immigration and
Customs Enforcement shall be used to enforce compliance with sections 274A and
274C of the Immigration and Nationality Act (8 U.S.C. 1324a and 1324c).

(c)

Authorization of
appropriations

There are authorized to be appropriated to the
Secretary for each of the fiscal years 2007 through 2011 such sums as may be
necessary to carry out this section.

306.

Amendments to
the Social Security Act and the Internal Revenue Code

(a)

Social Security
Act

Section 205(c)(2) of the Social Security Act (42 U.S.C.
405(c)(2)) is amended by adding at the end the following new
subparagraphs:

(I)(i)

The Commissioner of
Social Security shall, subject to the provisions of title III of the STRIVE Act
of 2007, establish a reliable, secure method to provide through the Electronic
Employment Verification System established pursuant to section 274A(c) of the
Immigration and Nationality Act (referred to in this subparagraph as the
System), within the time periods required by such
subsection—

(I)

a determination of whether the name, date
of birth, employer identification number, and social security account number of
an individual provided in an inquiry made to the System by an employer is
consistent with such information maintained by the Commissioner in order to
confirm the validity of the information provided;

(II)

a determination of the citizenship
status associated with such name and social security account number, according
to the records maintained by the Commissioner;

(III)

a determination of whether the name and
number belongs to an individual who is deceased, according to the records
maintained by the Commissioner;

(IV)

a determination of whether the name and
number is blocked in accordance with clause (ii); and

(V)

a confirmation or a nonconfirmation
described in such subsection (c), in a manner that ensures that other
information maintained by the Commissioner is not disclosed or released to
employers through the System.

(ii)

The Commissioner of Social
Security shall prevent the fraudulent or other misuse of a social security
account number by establishing procedures under which an individual who has
been assigned a social security account number may block the use of such number
under the System and remove such block.

(J)

In assigning social
security account numbers to aliens who are authorized to work in the United
States under section 218A of the Immigration and Nationality Act, the
Commissioner of Social Security shall, to the maximum extent practicable,
assign such numbers by employing the enumeration procedure administered jointly
by the Commissioner, the Secretary of State, and the
Secretary.

.

(b)

Disclosure of
certain taxpayer identity information

(1)

In
general

Section 6103(l) of the Internal Revenue Code of 1986 is
amended by adding at the end the following new paragraph:

(21)

Disclosure of
certain taxpayer identity information by Social Security administration to
department of homeland security

(A)

In
general

From taxpayer identity information which has been
disclosed to the Social Security Administration and upon written request by the
Secretary of Homeland Security, the Commissioner of Social Security shall
disclose directly to officers, employees, and contractors of the Department of
Homeland Security the following information:

(i)

Disclosure of
employer no-match notices

Taxpayer identity information of each
person who has filed an information return required by reason of section 6051
during calendar year 2006, 2007, or 2008 which contains—

(I)

more than 100 names
and taxpayer identifying numbers of employees (within the meaning of such
section) that did not match the records maintained by the Commissioner of
Social Security; or

(II)

more than 10
names of employees (within the meaning of such section) with the same taxpayer
identifying number.

Taxpayer identity information of each person who has
filed an information return required by reason of section 6051 which the
Commissioner of Social Security has reason to believe, based on a comparison
with information submitted by the Secretary of Homeland Security, contains
evidence of identity fraud due to the multiple use of the same taxpayer
identifying number (assigned under section 6109) of an employee (within the
meaning of section 6051).

(iii)

Disclosure of
information regarding nonparticipating employers

Taxpayer
identity information of each person who has filed an information return
required by reason of section 6051 which the Commissioner of Social Security
has reason to believe, based on a comparison with information submitted by the
Secretary of Homeland Security, contains evidence of such person's failure to
register and participate in the Electronic Employment Verification System
authorized under section 274A(c) of the Immigration and Nationality Act
(hereafter in this paragraph referred to as the System).

(iv)

Disclosure of
information regarding new employees of nonparticipating
employers

Taxpayer identity information of all employees (within
the meaning of section 6051) hired after the date a person identified in clause
(iii) is required to participate in the System under section 274A(c)(10) of the
Immigration and Nationality Act.

Taxpayer identity information of all employees (within
the meaning of section 6051) of each person who is required to participate in
the System under such section 274A(c)(10) of the Immigration and Nationality
Act.

(vi)

Disclosure of
new hire taxpayer identity information

Taxpayer identity
information of each person participating in the System and taxpayer identity
information of all employees (within the meaning of section 6051) of such
person hired during the period beginning with the later of—

(I)

the date such
person begins to participate in the System; or

(II)

the date of the
request immediately preceding the most recent request under this clause,

ending with
the date of the most recent request under this clause.(B)

Restriction on
disclosure

The Commissioner of Social Security shall disclose
taxpayer identity information under subparagraph (A) only for purposes of, and
to the extent necessary in—

(i)

establishing and
enforcing employer participation in the System;

(ii)

carrying out,
including through civil administrative and civil judicial proceedings, of
sections 212, 217, 235, 237, 238, 274A, 274B, and 274C of the Immigration and
Nationality Act; and

(iii)

the civil
operation of the Alien Terrorist Removal Court.

(C)

Reimbursement

The
Commissioner of Social Security shall prescribe a reasonable fee schedule for
furnishing taxpayer identity information under this paragraph and collect such
fees in advance from the Secretary of Homeland Security.

(D)

Termination

This
paragraph shall not apply to any request made after the date which is 3 years
after the date of the enactment of this
paragraph.

.

(2)

Compliance by
DHS contractors with confidentiality safeguards

(A)

In
general

Section 6103(p) of such Code is amended by adding at the
end the following new paragraph:

(9)

Disclosure to
DHS contractors

Notwithstanding any other provision of this
section, no return or return information shall be disclosed to any contractor
of the Department of Homeland Security unless the Secretary of Homeland
Security, to the satisfaction of the Secretary—

(A)

has requirements
in effect which require each such contractor which would have access to returns
or return information to provide safeguards (within the meaning of paragraph
(4)) to protect the confidentiality of such returns or return
information;

(B)

agrees to conduct
an on-site review every 3 years (mid-point review in the case of contracts or
agreements of less than 1 year in duration) of each contractor to determine
compliance with such requirements;

(C)

submits the
findings of the most recent review conducted under subparagraph (B) to the
Secretary as part of the report required by paragraph (4)(E); and

(D)

certifies to the
Secretary for the most recent annual period that such contractor is in
compliance with all such requirements.

The
certification required by subparagraph (D) shall include the name and address
of each contractor, a description of the contract or agreement with such
contractor, and the duration of such contract or
agreement.

.

(3)

Conforming
amendments

(A)

Section 6103(a)(3)
of such Code is amended by striking or (20) and inserting
(20), or (21).

(B)

Section
6103(p)(3)(A) of such Code is amended by adding at the end the following new
sentence: The Commissioner of Social Security shall provide to the
Secretary such information as the Secretary may require in carrying out this
paragraph with respect to return information inspected or disclosed under the
authority of subsection (l)(21)..

(C)

Section 6103(p)(4)
of such Code is amended—

(i)

by
striking or (17) both places it appears and inserting
(17), or (21); and

(ii)

by
striking or (20) each place it appears and inserting
(20), or (21).

(D)

Section
6103(p)(8)(B) of such Code is amended by inserting or paragraph
(9) after subparagraph (A).

(E)

Section 7213(a)(2)
of such Code is amended by striking or (20) and inserting
(20), or (21).

(c)

Authorization of
appropriations

(1)

In
general

There are authorized to be appropriated to the Secretary
such sums as are necessary to carry out the amendments made by this
section.

(2)

Limitation on
verification responsibilities of Commissioner of Social
Security

The Commissioner of Social Security is authorized to
perform activities with respect to carrying out the Commissioner's
responsibilities in this title or the amendments made by this title, but only
to the extent the Secretary has provided, in advance, funds to cover the
Commissioner's full costs in carrying out such responsibilities. In no case
shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the
Federal Disability Insurance Trust Fund be used to carry out such
responsibilities.

(d)

Effective
dates

(1)

Social Security
Act

The amendments made by subsection (a) shall take effect on
the date that is 180 days after the date of the enactment of this Act.

(2)

Internal Revenue
Code

(A)

In
general

The amendments made by subsection (b) shall apply to
disclosures made after the date of the enactment of this Act.

(B)

Certifications

The
first certification under section 6103(p)(9)(D) of the Internal Revenue Code of
1986, as added by subsection (b)(2), shall be made with respect to calendar
year 2007.

who is coming temporarily to the
United States to perform services (other than services described in clause
(ii)(a) or subparagraph (O) or (P)) in a specialty occupation described in
section 214(i)(1) or as a fashion model;

(bb)

who meets the requirements for the
occupation specified in section 214(i)(2) or, in the case of a fashion model,
is of distinguished merit and ability; and

(cc)

with respect to whom the Secretary of
Labor determines and certifies to the Secretary of Homeland Security that the
intending employer has filed an application with the Secretary in accordance
with section 212(n)(1);

(b1)(aa)

who is entitled to enter the United States
under the provisions of an agreement listed in section 214(g)(8)(A);

(bb)

who
is engaged in a specialty occupation described in section 214(i)(3); and

(cc)

with
respect to whom the Secretary of Labor determines and certifies to the
Secretary of Homeland Security and the Secretary of State that the intending
employer has filed an attestation with the Secretary of Labor in accordance
with section 212(t)(1); or

(c)(aa)

who is coming
temporarily to the United States to perform services as a registered
nurse;

(bb)

who meets the qualifications described
in section 212(m)(1); and

(cc)

with respect to whom the Secretary of
Labor determines and certifies to the Secretary of Homeland Security that an
unexpired attestation is on file and in effect under section 212(m)(2) for the
facility (as defined in section 212(m)(6)) for which the alien will perform the
services; or

(ii)(a)

who—

(aa)

has a residence in a foreign country
which the alien has no intention of abandoning; and

(bb)

is coming temporarily to the United
States to perform agricultural labor or services (as defined by the Secretary
of Labor), including agricultural labor (as defined in section 3121(g) of the
Internal Revenue Code of 1986), agriculture (as defined in section 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 203(f))), and the pressing of
apples for cider on a farm, of a temporary or seasonal nature;

(b)

who—

(aa)

has a residence in a foreign country
which the alien has no intention of abandoning;

(bb)

is coming temporarily to the United
States to perform nonagricultural work or services of a temporary or seasonal
nature (if unemployed persons capable of performing such work or services
cannot be found in the United States), excluding medical school graduates
coming to the United States to perform services as members of the medical
profession; or

(c)

who—

(aa)

is coming temporarily to the United
States to initially perform temporary labor or services other than the labor or
services described in clause (i)(b), (i)(b1), (i)(c), (ii)(a), or (iii),
subparagraph (D), (E), (I), (L), (O), (P), or (R), or section 214(e) (if United
States workers who are able, willing, and qualified to perform such labor or
services cannot be found in the United States); and

(bb)

meets the requirements of section
218A, including the filing of a petition under such section on behalf of the
alien;

(iii)

who—

(a)

has a residence in
a foreign country which the alien has no intention of abandoning; and

(b)

is coming
temporarily to the United States as a trainee (other than to receive graduate
medical education or training) in a training program that is not designed
primarily to provide productive employment; or

(iv)

who—

(a)

is the spouse or a
minor child of an alien described in this subparagraph; and

(b)

is accompanying or
following to join such
alien.

.

402.

Admission of
nonimmigrant workers

(a)

New
workers

Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended
by inserting after section 218 the following:

218A.

Admission of
H–2C nonimmigrants

(a)

Authorization

The
Secretary of State may grant a temporary visa to an H–2C nonimmigrant who
demonstrates an intent to perform labor or services in the United States (other
than the labor or services described in clause (i)(b), (i)(b1), (i)(c),
(ii)(a), or (iii) of section 101(a)(15)(H), subparagraph (D), (E), (I), (L),
(O), (P), or (R) of section 101(a)(15), or section 214(e) (if United States
workers who are able, willing, and qualified to perform such labor or services
cannot be found in the United States).

(b)

Requirements for
admission

An alien shall be eligible for H–2C nonimmigrant status
if the alien meets the following requirements:

(1)

Eligibility to
work

The alien shall establish that the alien is capable of
performing the labor or services required for an occupation described in
section 101(a)(15)(H)(ii)(c).

(2)

Evidence of
employment offer

The alien’s evidence of employment shall be
provided in accordance with the requirements issued by the Secretary of State,
in consultation with the Secretary of Labor. In carrying out this paragraph,
the Secretary may consider evidence from employers, employer associations, and
labor representatives.

(3)

Fee

The
alien shall pay a $500 visa issuance fee in addition to the cost of processing
and adjudicating such application. Nothing in this paragraph shall be construed
to affect consular procedures for charging reciprocal fees.

(4)

Medical
examination

The alien shall undergo a medical examination
(including a determination of immunization status), at the alien’s expense,
that conforms to generally accepted standards of medical practice.

(5)

Application
content and waiver

(A)

Application
form

The alien shall submit to the Secretary of State a completed
application, which contains evidence that the requirements under paragraphs (1)
and (2) have been met.

(B)

Content

In
addition to any other information that the Secretary requires to determine an
alien’s eligibility for H–2C nonimmigrant status, the Secretary of State shall
require an alien to provide information concerning the alien’s—

(i)

physical and
mental health;

(ii)

criminal history
and gang membership;

(iii)

immigration
history; and

(iv)

involvement with
groups or individuals that have engaged in terrorism, genocide, persecution, or
who seek the overthrow of the United States Government.

(C)

Knowledge

The
alien shall include with the application submitted under this paragraph a
signed certification in which the alien certifies that—

(i)

the alien has read
and understands all of the questions and statements on the application
form;

(ii)

the alien
certifies under penalty of perjury under the laws of the United States that the
application, and any evidence submitted with it, are all true and correct;
and

(iii)

the applicant
authorizes the release of any information contained in the application and any
attached evidence for law enforcement purposes.

(c)

Grounds of
inadmissibility

(1)

In
general

In determining an alien’s admissibility as an H–2C
nonimmigrant—

(A)

paragraphs (5),
(6) (except subparagraph (E)), (7), (9), and (10)(B) of section 212(a) may not
apply with respect to conduct that occurred before the effective date of the
STRIVE Act;

the Secretary of
State may waive the application of any provision of section 212(a) not listed
in subparagraph (B) on behalf of an individual alien—

(i)

for humanitarian
purposes;

(ii)

to
ensure family unity; or

(iii)

if such a waiver
is otherwise in the public interest;

(D)

nothing in this paragraph shall be
construed as affecting the authority of the Secretary other than under this
paragraph to waive the provisions of section 212(a).

(2)

Renewal of
authorized admission and subsequent admissions

An alien seeking
renewal of authorized admission or subsequent admission as an H–2C nonimmigrant
shall establish that the alien is not inadmissible under section 212(a).

(3)

Background
checks

The Secretary of Homeland Security shall not admit, and
the Secretary of State shall not issue a visa to, an alien seeking H–2C
nonimmigrant status unless all appropriate background checks have been
completed.

(d)

Period of
authorized admission

(1)

Authorized
period

The initial period of authorized admission as an H–2C
nonimmigrant shall be 3 years.

(2)

Renewal

Before
the expiration of the initial period under paragraph (1), an H–2C nonimmigrant
may submit an application to the Secretary of Homeland Security to extend H–2C
nonimmigrant status for 1 additional 3-year period. The Secretary may not
require an applicant under this paragraph to depart the United States as a
condition for granting such extension.

(3)

International
commuters

An alien who maintains actual residence and place of
abode outside the United States and commutes into the United States to work as
an H–2C nonimmigrant, is not subject to the time limitations under paragraphs
(1) and (2).

(4)

Loss of
employment

(A)

In
general

(i)

Period of
unemployment

Subject to clause (ii) and subsection (c), the
period of authorized admission of an H–2C nonimmigrant shall terminate if the
alien is unemployed for 60 or more consecutive days.

(ii)

Exception

The
period of authorized admission of an H–2C nonimmigrant shall not terminate if
the alien is unemployed for 60 or more consecutive days if the alien submits
documentation to the Secretary of Homeland Security that establishes that such
unemployment was caused by—

(I)

a period of
physical or mental disability of the alien or the spouse, son, daughter, or
parent (as defined in section 101 of the Family and Medical Leave Act of 1993
(29 U.S.C. 2611)) of the alien;

(II)

a period of
vacation, medical leave, maternity leave, or similar leave from employment
authorized by employer policy, State law, or Federal law; or

(III)

any other period
of temporary unemployment that is the direct result of a major disaster or
emergency (as defined under section 532 of the
STRIVE Act.

(B)

Return to
foreign residence

Any alien whose period of authorized admission
terminates under subparagraph (A) shall be required to leave the United
States.

(C)

Period of visa
validity

Any alien, whose period of authorized admission
terminates under subparagraph (A), who leaves the United States under
subparagraph (B), may reenter the United States as an H–2C nonimmigrant to work
for an employer, if the alien has complied with the requirements of subsection
(b).

(5)

Visits outside
the united states

(A)

In
general

Under regulations established by the Secretary of
Homeland Security, an H–2C nonimmigrant—

(i)

may travel outside
of the United States; and

(ii)

may be readmitted
without having to obtain a new visa if the period of authorized admission has
not expired.

(B)

Effect on period
of authorized admission

Time spent outside the United States
under subparagraph (A) shall not extend the period of authorized admission in
the United States.

(6)

Bars to extension
or admission

An alien may not be granted H–2C nonimmigrant
status, or an extension of such status, if—

(A)

the alien has
violated any material term or condition of such status granted previously,
including failure to comply with the change of address reporting requirements
under section 265;

(B)

the alien is
inadmissible as a nonimmigrant; or

(C)

the granting of
such status or extension of such status would allow the alien to exceed 6 years
as an H–2C nonimmigrant, unless the alien has resided and been physically
present outside the United States for at least 1 year after the expiration of
such H–2C nonimmigrant status.

shall be
machine-readable, tamper-resistant, and allow for biometric
authentication;

(2)

shall, during the
alien’s authorized period of admission under subsection (f), serve as a valid
entry document for the purpose of applying for admission to the United
States—

(A)

instead of a
passport and visa if the alien—

(i)

is
a national of a foreign territory contiguous to the United States; and

(ii)

is applying for
admission at a land border port of entry; and

(B)

in conjunction
with a valid passport, if the alien is applying for admission at an air or sea
port of entry;

(3)

may be accepted
during the period of its validity by an employer as evidence of employment
authorization and identity under section 274A(b)(1)(B); and

(4)

shall be issued to
the H–2C nonimmigrant by the Secretary of Homeland Security promptly after
final adjudication of such status or, at the discretion of the Secretary of
Homeland Security, may be issued by the Secretary of State at a consulate
instead of a visa.

(f)

Penalties for
failure To depart

If an H–2C nonimmigrant fails to depart the
United States by the date that the alien’s authorized admission as an H–2C
nonimmigrant concludes, the visa of the alien shall be void under section
222(g)(1) and the alien shall be ineligible to be readmitted to the United
States under section 222(g)(2). The alien may be removed if found to be within
1 or more of the classes of deportable aliens described in section 237.

(g)

Penalty for
illegal entry or overstay

Any alien who unlawfully enters,
attempts to enter, or crosses the border after the date of the enactment of
this section, and is physically present in the United States after such date in
violation of the immigration laws of the United States, may not receive, for a
period of 10 years—

A
nonimmigrant alien described in this section, who was previously issued a visa
or otherwise provided H–2C nonimmigrant status, may accept a new offer of
employment with a subsequent employer, if—

(1)

the employer
complies with section 218B; and

(2)

the alien, after
lawful admission to the United States, did not work without
authorization.

(i)

Change of
address

An H–2C nonimmigrant shall comply with the change of
address reporting requirements under section 265 through electronic or paper
notification.

(j)

Collection of
fees

All fees other than the application filing fee collected
under this section shall be deposited in the Treasury in accordance with
section
286(w).

.

(b)

Clerical
amendment

The table of contents Immigration and Nationality Act (8 U.S.C. 1101
et seq.) is amended by inserting after the item relating to section 218 the
following:

Sec. 218A. Admission of H–2C
nonimmigrants.

.

403.

Employer
obligations

(a)

In
general

Title II (8 U.S.C. 1201 et seq.) is amended by inserting
after section 218A, as added by section 402, the following:

218B.

Employer
obligations

(a)

General
requirements

Each employer who employs an H–2C nonimmigrant
shall—

(1)

file a petition in
accordance with subsection (b); and

(2)

be required to
pay—

(A)

an application
filing fee for each alien, based on the cost of carrying out the processing
duties under this subsection; and

(B)

a secondary fee, to
be deposited in the Treasury in accordance with section 286(w), of—

(i)

$250, in the case of
an employer employing 25 employees or less;

(ii)

$500, in the case
of an employer employing between 26 and 150 employees;

(iii)

$750, in the
case of an employer employing between 151 and 500 employees; or

(iv)

$1,000, in the
case of an employer employing more than 500 employees. pay the appropriate
fee.

(b)

Required
procedure

Except where the Secretary of Labor has determined that
there is a shortage of United States workers in the occupation and area of
intended employment to which the H–2C nonimmigrant is sought, each employer of
H–2C nonimmigrants shall comply with the following requirements:

(1)

Efforts to
recruit united states workers

During the period beginning not
later than 90 days before the date on which a petition is filed under
subsection (a)(1), and ending on the date that is 14 days before to such filing
date, the employer involved shall recruit United States workers for the
position for which the H–2C nonimmigrant is sought under the petition,
by—

(A)

submitting a copy
of the job opportunity, including a description of the wages and other terms
and conditions of employment and the minimum education, training, experience
and other requirements of the job, to the State Employment Service Agency that
serves the area of employment in the State in which the employer is
located;

(B)

authorizing the
employment service agency of the State to post the job opportunity on the
Internet website established under section 405 of the
STRIVE Act, with local job
banks, and with unemployment agencies and other labor referral and recruitment
sources pertinent to the job involved;

(C)

authorizing the
employment service agency of the State to notify—

(i)

labor
organizations in the State in which the job is located; and

(ii)

if applicable,
the office of the local union which represents the employees in the same or
substantially equivalent job classification of the job opportunity;

(D)

posting the
availability of the job opportunity for which the employer is seeking a worker
in conspicuous locations at the place of employment for all employees to
see;

(E)

advertising the
availability of the job opportunity for which the employer is seeking a worker
in a publication with the highest circulation in the labor market that is
likely to be patronized by a potential worker for not fewer than 10 consecutive
days; and

(F)

based on
recommendations by the local job service, advertising the availability of the
job opportunity in professional, trade, or ethnic publications that are likely
to be patronized by a potential worker.

(2)

Efforts to
employ united states workers

An employer that seeks to employ an
H–2C nonimmigrant shall first offer the job to any eligible United States
worker who applies, is qualified for the job and is available at the time of
need, notwithstanding any other valid employment criteria.

(c)

Petition

A
petition to hire an H–2C nonimmigrant under this section shall be filed with
the Secretary of Labor and shall include an attestation by the employer of the
following:

(1)

Protection of
united states workers

The employment of an H–2C
nonimmigrant—

(A)

will not adversely
affect the wages and working conditions of workers in the United States
similarly employed; and

(B)

did not and will
not cause the separation from employment of a United States worker employed by
the employer within the 180-day period beginning 90 days before the date on
which the petition is filed.

(2)

Wages

(A)

In
general

The H–2C nonimmigrant will be paid not less than the
greater of—

(i)

the actual wage
level paid by the employer to all other individuals with similar experience and
qualifications for the specific employment in question; or

(ii)

the prevailing
wage level for the occupational classification in the area of employment,
taking into account experience and skill levels of employees.

(B)

Calculation

The
wage levels under subparagraph (A) shall be calculated based on the best
information available at the time of the filing of the application.

(C)

Prevailing wage
level

For purposes of subparagraph (A)(ii), the prevailing wage
level shall be determined in accordance as follows:

(i)

If
the job opportunity is covered by a collective bargaining agreement between a
union and the employer, the prevailing wage shall be the wage rate set forth in
the collective bargaining agreement.

(ii)

If the job
opportunity is not covered by such an agreement and it is on a project that is
covered by a wage determination under a provision of subchapter IV of chapter
31 of title 40, United States Code, or the Service Contract Act of 1965 (41
U.S.C. 351 et seq.), the prevailing wage level shall be the appropriate
statutory wage.

(iii)(I)

If the job opportunity
is not covered by such an agreement and it is not on a project that is covered
by a wage determination under a provision of subchapter IV of chapter 31 of
title 40, United States Code, or the Service Contract Act of 1965 (41 U.S.C.
351 et seq.), the prevailing wage level shall be based on published wage data
for the occupation from the Bureau of Labor Statistics, including the
Occupational Employment Statistics survey, Current Employment Statistics data,
National Compensation Survey, and Occupational Employment Projections program.
If the Bureau of Labor Statistics does not have wage data applicable to such
occupation, the employer may base the prevailing wage level on another wage
survey approved by the Secretary of Labor.

(II)

The Secretary shall promulgate
regulations applicable to approval of such other wage surveys that require,
among other things, that the Bureau of Labor Statistics determine such surveys
are statistically viable.

(3)

Working
conditions

All workers in the occupation at the place of
employment at which the H–2C nonimmigrant will be employed will be provided the
working conditions and benefits that are normal to workers similarly employed
in the area of intended employment.

(4)

Labor
dispute

There is not a strike, lockout, or work stoppage in the
course of a labor dispute in the occupation at the place of employment at which
the H–2C nonimmigrant will be employed. If such strike, lockout, or work
stoppage occurs following submission of the petition, the employer will provide
notification in accordance with regulations promulgated by the Secretary of
Labor.

(5)

Provision of
insurance

If the position for which the H–2C nonimmigrant is
sought is not covered by the State workers’ compensation law, the employer will
provide, at no cost to the H–2C nonimmigrant, insurance covering injury and
disease arising out of, and in the course of, the worker’s employment, which
will provide benefits at least equal to those provided under the State workers’
compensation law for comparable employment.

(6)

Notice to
employees

(A)

In
general

The employer has provided notice of the filing of the
petition to the bargaining representative of the employer’s employees in the
occupational classification and area of employment for which the H–2C
nonimmigrant is sought.

(B)

No bargaining
representative

If there is no such bargaining representative, the
employer has—

(i)

posted a notice of
the filing of the petition in a conspicuous location at the place or places of
employment for which the H–2C nonimmigrant is sought; or

(ii)

electronically
disseminated such a notice to the employer’s employees in the occupational
classification for which the H–2C nonimmigrant is sought.

(7)

Recruitment

Except
where the Secretary of Labor has determined that there is a shortage of United
States workers in the occupation and area of intended employment for which the
H–2C nonimmigrant is sought—

(A)

there are not
sufficient workers who are able, willing, and qualified, and who will be
available at the time and place needed, to perform the labor or services
involved in the petition; and

(B)

good faith efforts
have been taken to recruit United States workers, in accordance with
regulations promulgated by the Secretary of Labor, which efforts
included—

(i)

the
completion of recruitment during the period beginning on the date that is 90
days before the date on which the petition was filed with the Department of
Homeland Security and ending on the date that is 14 days before such filing
date; and

(ii)

the actual wage
paid by the employer for the occupation in the areas of intended employment was
used in conducting recruitment.

(8)

Ineligibility

The
employer is not currently ineligible from using the H–2C nonimmigrant program
described in this section.

(9)

Bonafide offer
of employment

The job for which the H–2C nonimmigrant is sought
is a bona fide job—

(A)

for which the
employer needs labor or services;

(B)

which has been and
is clearly open to any United States worker; and

(C)

for which the
employer will be able to place the H–2C nonimmigrant on the payroll.

(10)

Public
availability and records retention

A copy of each petition filed
under this section and documentation supporting each attestation, in accordance
with regulations promulgated by the Secretary of Labor, will—

(A)

be provided to
every H–2C nonimmigrant employed under the petition;

(B)

be made available
for public examination at the employer’s place of business or work site;

(C)

be made available
to the Secretary of Labor during any audit; and

(D)

remain available for
examination for 5 years after the date on which the petition is filed.

(11)

Notification
upon separation from or transfer of employment

The employer will
notify the Secretary of Labor and the Secretary of Homeland Security of an H–2C
nonimmigrant’s separation from employment or transfer to another employer not
more than 3 business days after the date of such separation or transfer, in
accordance with regulations promulgated by the Secretary of Homeland
Security.

(12)

Actual need for
labor or services

The petition was filed not more than 60 days
before the date on which the employer needed labor or services for which the
H–2C nonimmigrant is sought.

(d)

Audit of
attestations

(1)

Referrals by
secretary of homeland security

The Secretary of Homeland Security
shall refer all approved petitions for H–2C nonimmigrants to the Secretary of
Labor for potential audit.

(2)

Audits
authorized

The Secretary of Labor may audit any approved petition
referred pursuant to paragraph (1), in accordance with regulations promulgated
by the Secretary of Labor.

(e)

Ineligible
employers

(1)

In
general

The Secretary of Labor shall not approve an employer’s
petitions, applications, certifications, or attestations under any immigrant or
nonimmigrant program if the Secretary of Labor determines, after notice and an
opportunity for a hearing, that the employer submitting such documents—

(A)

has, with respect
to the attestations required under subsection (b)—

(i)

misrepresented a
material fact;

(ii)

made a fraudulent
statement; or

(iii)

failed to comply
with the terms of such attestations; or

(B)

failed to cooperate
in the audit process in accordance with regulations promulgated by the
Secretary of Labor.

(2)

Length of
ineligibility

An employer described in paragraph (1) shall be
ineligible to participate in the labor certification programs of the Secretary
of Labor for not less than the time period determined by the Secretary, not to
exceed 3 years.

(3)

Employers in
high unemployment areas

The Secretary of Labor may not approve
any employer’s petition under subsection (b) if the work to be performed by the
H–2C nonimmigrant is not agriculture based and is located in a metropolitan or
micropolitan statistical area (as defined by the Office of Management and
Budget) in which the unemployment rate for workers who have not completed any
education beyond a high school diploma during the most recently completed
6-month period averaged more than 9.0 percent.

(f)

Regulation of
foreign labor contractors

(1)

Coverage

Notwithstanding
any other provision of law—

(A)

an H–2C
nonimmigrant is prohibited from being treated as an independent contractor;
and